United States v. Mooney

MEMORANDUM OPINION AND ORDER

SHADUR, Senior District Judge.

This Court has conducted an evidentiary hearing to consider whether defendant David Mooney (“Mooney”) “may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable... to assist properly in his defense,” one of the criteria specified by 18 U.S.C. § 4241(a).¹ To that end two witnesses testified: Psychologist Daniel Carlson, who is affiliated with FMC Rochester and studied Mooney during a period of observation and study at that institution, and private psychiatrist Richard Abrams, whom this Court authorized to be retained by Mooney’s defense counsel under the Criminal Justice Act and who initially conducted a psychiatric examination of Mooney and then had some follow-up contact with him. Psychologist Carlson, who has been a staff psychologist at FMC Rochester for something over two years, answered the “mental disease or defect” question in the negative, while Dr. Abrams gave an affirmative answer to that question.

After the hearing each side’s counsel complied with this Court’s request to identify authorities that had addressed the content of the statutory terms at issue. In that respect Dr. Carlson’s testimony was that Mooney did not fit into any of the categories of mental diseases identified in the Diagnostic and Statistical Manual of Mental Disorders-Fourth Edition (“DSM-IV”). Hence Dr. Carlson viewed Mooney’s mental problem as a “personality disorder” — something that a few cases later adduced by the prosecution have found does not meet the statutory standard of “mental disease or defect” (United States v. Rosenheimer, 807 F.2d 107, 111-12 (7th Cir.1986) (per curiam) was the only Court of Appeals opinion that the government proffered on that score). For their part, Mooney’s counsel have turned up only a few cases of 1960s vintage that suggest “mental disease or defect” to be terms of more flexible content.

Just a few words should be said about Rosenheimer before this Court turns to its evaluation of the testimony. After that opinion had engaged in an extensive discussion of the facts of that case and of the district court’s ruling that the defendant there had been competent during the trial as well as sane at the time the criminal acts had been committed, the opinion said this (807 F.2d at 112):

Based on the testimony presented at the hearing, the court found that the defendant did not suffer from any mental disease or defect, but rather from a narcissistic personality disorder which is separate and distinct from suffering from a mental disease or defect. Because the court properly found that Rosen-heimer failed to present “some evidence” of a mental disease or defect, the government was not required under the pre-1984 definition, to prove Rosen-heimer’s sanity.

It would stretch that statement a great deal to read it as a bright-line holding that there are no circumstances under which a condition that fits a “personality disorder” pigeonhole (other than that of narcissism), but that does not necessarily qualify for some DSM-IV classification, can still be a “mental disease or defect” that would render the defendant incapable of assisting properly in his defense. In terms of this case, even if Mooney’s diagnosis were properly to be labeled as a “personality disorder” in paper terms (as Dr. Carlson has opined), Mooney’s real-life manifestations of his condition — spontaneous violent outbursts that escalate into clearly uncontrollable rage and physical violence — have unquestionably rendered him just as incapable of effective participation in his defense as if he were suffering from the most serious type of mental disease. In short, even if the “personality disorder” label were to be accepted as an apt description, this Court would still have to conclude that Mooney’s mental state and the concomitant involuntary rages and outrages that it has generated in the context of trial (and other related in-court proceedings) qualify as the type of “mental disease or defect” that satisfies the Section 4241(a) standard.

But as the ensuing discussion reflects, it is unnecessary to reach that issue to resolve the question facing this Court, for any such tyranny of labels is inappropriate here. This Court’s law clerk has made an independent search that has cast further light on the subject by locating some additional cases. Those cases include United States v. Murdoch, 98 F.3d 472 (9th Cir.1996) and United States v. Hemsi, 901 F.2d 293 (2d Cir.1990), although this Court has reviewed a number of other cases as well. Of particular interest in light of Mooney’s conduct and of the differing diagnoses submitted to this Court is the thoughtful and extensive concurring opinion in Murdoch, 98 F.3d at 477-80, which evaluated the DSM-IV categorizations as well as existing case and statutory law in careful detail and summarized that analysis in this way (id. at 479-80):

Although I ágree that mere personality quirks or characteristics cannot be construed as mental diseases or defects for purposes of determining legal sanity, I conclude that a personality disorder such as that suffered by Appellant is much more than a mere quirk. It is a systemic, enduring, and severe condition resulting in an extremely abnormal perception of and reaction to everyday events. In short, Appellant’s condition is so encompassing and impairing that it rises to the level of a disease or defect.

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Of particular significance is the fact that a personality disorder is more than just a repeated pattern of behavior. It is an enduring pattern of behavior and inner experience which can affect cognition (i.e. ways of perceiving and understandings) and affectivity (emotional reactions). Therefore, it can be said to be “mental.” In addition, it does not just manifest itself now and again in response to a particular set of circumstances; it is pervasive and inflexible. It is not just one part of a person’s personality which is annoying, distasteful, or rude; it is a trait or group of traits which dominates the person’s mental state to the point where they experience significant functional impairment or subjective distress. Thus, it comports with the general connotation of a “disease or defect” in that it is neither a temporary condition nor a chosen way of responding but rather a systemic, impairing psychiatric abnormality.

To much the same effect, Hemsi upheld a determination that a defendant who “suffered from a major psychiatric disorder” (901 F.2d at 294) and who acted out in ways strongly similar to the bizarre behavior that Mooney has exhibited was indeed “suffering from a mental disease or defect rendering him incompetent to the extent that he is unable to assist properly in his defense” (id.).

But in terms of this case, any effort to reconcile any differing judicial views along those lines is totally unnecessary: This Court’s evaluation of the witnesses’ testimony here obviates the need to resolve any question whether “mental disease or defect” and “personality disorders” always occupy discrete watertight compartments in the mental health universe, as Rosen-heimer might perhaps be read to suggest (though any such reading is problematic at best). After careful consideration of the testimony proffered by the two witnesses, this Court credits that of Dr. Abrams, who draws on a wealth of experience and expertise (see Mooney Ex. 3, Dr. Abrams’ Curriculum Vita) in expressing the firm opinion that Mooney suffers from a deep depression and feelings of worthlessness that his fits of rage tend to paper over. It is unnecessary to parse all facets of Dr. Abrams’ additional and wholly cogent testimony (which should be read in its entirety to be fully appreciated), but his diagnosis of Mooney as indeed suffering from a “mental disease or defect” is totally persuasive.²

Indeed, Dr. Carlson’s conclusion that Mooney’s explosive manifestations of rage represent “volitional behavior” is totally unrealistic and is flat-out rejected by this Court (as it was by Dr. Abrams). Dr. Carlson has not observed, as this Court has on two separate occasions, the totally out-of-control violent behavior by Mooney that has manifested itself in the specific environment of trial and other legal proceedings (an environment that Dr. Carlson of course neither observed nor was able to replicate in the different matrix in which he and other personnel at Rochester necessarily dealt with Mooney). It is clear that the legal proceedings themselves trigger such uncontrollable episodes, and that there is no way to predict what seemingly innocuous factor may set off explosive behavior by Mooney (once again, something on which Dr. Carlson could not really opine). This Court concurs in Dr. Abrams’ opinion that the bizarre and dangerous conduct that has been exhibited by Mooney in the specific context of trial and in his working with counsel is entirely non-volitional and is, as Dr. Abrams concluded, the product of a “mental disease or defect” within the meaning of Section 4241(a).³

Although what follows is really a parenthetical observation in light of this Court’s crediting of Dr. Abrams’ well-supported diagnosis, a word should perhaps be added about Dr. Carlson’s approach and its total reliance on the DSM-IV pigeonholes. Anyone who has had occasion to address problems in the field of mental health (or its absence) has to be conscious of some fundamental difficulties with the DSM-IV definitions, which will sometimes provide (for example) that someone who exhibits four of seven specified characteristics fits a defined category of mental disease, while someone who exhibits only three of the seven does not. Even apart from the problems inherent in seeking to establish bright-line rules for exploring the arcane mysteries of the human mind, the just-described approach necessarily treats all of the characteristics at issue as somehow fungible and of equal weight, thus ascribing no significance to the subtle differences and gradations that exist in this most difficult field of diagnosis (wholly unlike the objective medical determination whether, for example, a patient has suffered a fracture).

But once again that is a digression, for this Court’s ruling is grounded firmly in Dr. Abrams’ wholly credible and persuasive diagnosis. In consequence of the conclusion reached by this Court, the picture that now presents itself is that Mooney is unquestionably competent for purposes of the other branch of a Section 4241(a) inquiry (he is certainly able “to understand the nature and consequences of the proceedings against him,” for in his rational periods he presents himself as a highly intelligent individual with full awareness of the charge that he is facing and its potential consequences for him). This Court can express no substantive view on the merits of that charge, because the very effort to reach those merits would create the climate in which Mooney cannot function.⁴ On the face of the relevant statutes, that seems to create a vicious procedural circle:

1. Under the literal provisions of Section 4241(d) this Court is mandated to commit Mooney to the custody of the Attorney General for hospitalization “to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed.” As certain as a negative answer to that determination would appear- to be in light of (a) Mooney’s prior conduct and (b) Dr. Abrams’ diagnosis, the statute appears to be unambiguous, leaving no room for discretion.

2. If at the end of the procedure and the time frame specified in Section 4241(d) “it is determined that the defendant’s mental condition has not so improved as to permit the trial to pro-eeed,” Section 4246 will kick into operation.

3. In literal terms, Section 4246(a) calls for a certification by the director of the facility in which Mooney is then hospitalized that Mooney is “presently suffering from a mental disease or defect as a result of which his release would create a substantial risk of bodily injury to another person or serious damage to property of another, and.. .suitable arrangements for State custody and care of the person are not available.... ” That then would return the matter to this Court to conduct a hearing on that score.

4. If that hearing were then to result in an affirmative finding by clear and convincing evidence that the earlier-quoted situation still exists, this Court would then be obligated to recommit Mooney to the custody of the Attorney General (Section 4246(d)). In turn the Attorney General would be obligated to make all reasonable efforts to cause the State of Illinois to-assume responsibility for Mooney’s “custody, care and treatment,” failing which his hospitalization in a federal facility would be required.

Although this Court does not of course prejudge the results of any of the several steps just outlined, it has a deep concern that Mooney may well face long-term (even lifetimé) commitment for a charged offense as to which he has not been found guilty and that, even if he were convicted, would not call for anything remotely approaching such a result.⁵ In all events, this matter is set for a next status hearing at 1:15 p.m. on December 8, 2000. At that time counsel are expected to address the matters dealt with in this memorandum opinion and order and to discuss what next steps appear to be appropriate.

Richard S. Abrams, M.D.,8.C

Offices; 2800 N. Sheridan Rd., Suite 206, 1100 W. Central Ave, Suite 404, Chicago, IL 60657 Arlington Hts., EL 60005

Mail address; P.O. Box 148033, Chicago, IL 60614, USA

TEL: 1 773/348 7003 FAX: 1 847/256 7880 E-Mail: Abrahaml98@AOL.com

Certif. Anier. Bd. Psychiatry

CURRICULUM VITA

Born: Chicago, Illinois, USA, February 22, 1933.

Staff: Northwestern Memorial Hospital in Chicago, IL, from 1970-1991. Associate in Psychiatry and teaching staff of Northwestern Medical School.

Attending staff, Northwest Community Hospital, Arlington Hts, IL, 1986 to present.

Attending staff Grant Hospital, Chicago, IL, since!976. Director of Psychiatry, 1976-1980. Director Quality Assurance Committee for Psychiatry, 1992 - present.

Attending staff of Mercy Hospital, Chicago, IL, 1996 to present.

Board Certification: Jan, 1976, American Board of Psychiatry and Neurology. Certificate #14483.

Consultant to Chicago Public Schools 1973-1977, Duties were teaching classroom, special education, adjustment teachers and social workers. I gave formal and informal seminars and lectures to Board of Education nurses and school psychologists, with accreditation through National College of Education.

Past Training and Experience: Graduate of Northwestern University, undergraduate (1955) and Medical schools (1958), with BS and MD degrees. Internship: rotating at Ccdars-Sinai Medical Center, Los Angeles, CA 1958-1959. Residency: general surgery, 2 years, 1959-1961, at Michael Reese Hospital in Chicago. Residency: general surgery from 1961-1963 at Grasslands Hospital, Valhalla, NY Residency: psychiatry from 1964-1968 at the Boston Veterans’ Hospital in Boston, MA. This included training in long terra analytically oriented psychotherapy, with intensive supervision of in and out-patients, using the facilities of the 1000 bed VA general hospital and outpatient clinics. Two years were spent at Tufts-New England Medical Center, gaining experience with female patients. One year, part time, was spent in the study of child psychiatry. Individual and group psychotherapy was practiced with mentally retarded patients attending the Femald School. Throughout the training program, I led a minimum of two groups. The views of my supervisors were highly varied, including traditionally psychoanalytic, reality oriented and behavioristic methodologies. Emphasis was placed on intensive, long-term involvement with patients. A personal analysis was included in the program. On weekends during the training program, I staffed the emergency room at St. John’s Hospital in Lowell, MA and covered the private practices of general practitioners.

In 1969,1 was staff psychiatrist at New York Medical college and Metropolitan Hospital in New York City. I also maintained a private practice in psychiatry in Fort Lee, NJ.

In 19701 jnlnixl the private practice group of Professor Di. Benjamin Boshes, Chairman of the Dept, of Psychiatry at Northwestern Medical School and hospitals. In 1974,1 left the group to establish my own private practice of psychiatry, which I maintain to the present with offices in Chicago and Arlington Hts., Illinois. I treat patients from about age 15 to geriatric age in the offices and in the hospitals. Diagnoses range include the psychoses, personality disorders, neuroses, organic dementias, and alcohol/drug addictions. I perform child custody evaluations and practice forensic psychiatry.

From 1976 -1980, as the Director of Psychiatry at Giant Hospital, my duties were to develop an inpatient psychiatric unit. 1 also supervised staff of the outpatient clinic.

From 1985-1993 I served as staff psychiatrist for the Institute of Psychiatry of the Criminal Court of Cook County, examining those persons charged with crimes, at the pre indictment and indictment levels, for fitness to stand trial and for sanity determination. I also examined and evaluated families who were embroiled in divorce and child custody issues.

Since 19851 have been an official examiner for tire U. S. Social Security Administration, determining eligibility of applicants for disability benefits.

1 am a member of the American College of Forensic Examiners.

Publications available upon request.

Richard S. Abrams, M.D..S.C

Offices: 2800 N. Sheridan Rd., Suite 206, 1100 W. Central Ave., Suite 404, Chicago, IL 60657 Arlington Ills., IL 60005

Mail address: P.O. Box 148033, Chicago, IL 60614, USA

TEL: 1 773/348 7003 FAX: 1 847/256 7880 E-Mail: Abrahant198@AOL.com

Certif. Arntr. Bd. Psychiatry

Mr. Thomas Durkin and Patrick Btcgcn, 3/15/2000

53 W. Jackson Blvd. Re: David Mooney

Chicago, IL 60606

Dear Sirs,

At your request, I performed a psychiatric examination of this person at the Metropolitan Correctional Center on 2/14/2000, in order to determine his mental state at the lime of the alleged crime, which occurred in July, 1999. During the course of my examination, questions arose as to his competency to stand trial.

I spent about l-‘/j hours with him alone. lie is a 33-year-old, single, childless male who has been in prison for about 8 months. He is alleged to have threatened to kill President Clinton. He staled that he had been a very heavy alcohol drinker tor many years; since age 17. He was drinking a case of beer per day as well as l/5,h gallon of hard liquor! He has, over the years, had thoughts of killing himself. In fact, he overdosed at age 20 and was taken to an emergency room, hut was not hospitalized. Just prior to his arrest, he stated that he wanted to be locked up so he could be treated, feci better and for fear that he would lose control of his severe hostility. He stated that he called the police and the FBI for that purpose. A Government agent interviewed him and he threatened to harm her also.

When 1 asked him why he had not been treated for alcoholism before, he slated that he never had money for private treatment and could not find an available public inpatient facility. Just prior to his arrest, he contacted a Priest, but could not secure a treatment program, even with his help.

He left home at age 16. His stated that “my biological father was a N— (African Black man) who had a one night stand with my slut white mother.” He never had contact with either of his natural parents. At all limes during the interview, he showed extreme anger and appeared to be almost out of control of his violent impulses many times. At first, he was furious when I asked about his earlier li fe, and he refused to talk of that, but toward the end of the session, he revealed that he was raised by another woman, in Ireland, who also had 6 older children. lie was treated as a black sheep, denied butter for his bread, salt for his potatoes, and received nothing but left-overs of food, clothing, bedclothes, etc. Often, he was locked in a room and had to urinate on the floor. He said that he was sent to boarding school from ages 8 to 16 and was only visited twice per year by any family member. On the contrary, the other children received regular and frequent visits. During the summers, he was allowed to come home, but was denied access to the house; instead being forced to do outside chores, white the other children liad the run of the house, snacks, and better meals and lots of attention. “Mother would look oui of the window and make faces at me.” He felt that his presence was barely tolerated. He never recalls ever having been hugged or kissed by any family member. He felt humiliated, helpless, unloved, and learned to hate himself and the others. “They destroyed my life and made a monster of me."

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At age 16, he lived in the streets, learned to steal, forge checks, and beg for handouts, “1 never developed any emotional bonds." He lived in London, Spain, Mexico, and finally he came to the US. During those years, he continued heavy drinking and periodically would threaten, by long distance telephone, various family members, unleashing his rage at them. He worked off and on, for 9 years as a retail broker and as a commodity broker. His longest employment at any one job was 2 years. He received a bachelor and a master degree, the latter in economics. There was no history of hallucinations, drug abuse, or major physical illnesses or operations. He takes no medications.

His mental status exam showed no limp, tremor, or obvious deformity.

There was very poor eye contact. lie was constantly and severely angry and threatened numerous authority figures. I explained to him the possibility of being discharged from jail if the authorities felt that he would not harm anyone. “F— them all, I won't keep quiet, 1 won’t do what they want, 1 won’t take any medication. One day I’ll kill my (family).’’ I could not reason with him. Atone point, he saw my pen and stated that he could kill me! His IQ from the clinical exam appeared above average. lie was rational, alert, hypervigilant, untrusting, loud, and talked in a brave way, considering his position. At one point, I noticed a tear in bis eye, but he would not let himself express the deep depression and sense of hopelessness that 1 perceived. lie stated that he would stay in the jail “as long as they wanted. F— them." He showed only intellectual, but not emotional insights into the nature of his conflicts and showed no motivation for such. Memory, ability to calculate, fund of knowledge and ability to abstract, all appeared intact.

1 reviewed various records in your office. They indicate that he was reported to the authorities in Ireland for threatening members of his family. In fact, it is possible that the Irish authorities would arrest him and pul him on trial for those allegations. When he was young, there is reference to him causing a bomb scare in a school. In our discussion, it was revealed that at a Court appearance, he lost control of his anger and disrupted the proceedings.

The report of his psychiatric status by the Federal Medical Center in Rochester, Mn„ dated 9/10/99, states:

“Due U> Mr. Mooney’s disruptive and uncooperative behavior, no psychological testing was attempted." The history they obtained was more or less the same as the hiílory I learned from Mr Mooney “Correspondence belween Iaierpoi-Dublin and the US indicated Mr. Mooney was alleged to have made a number of recent telephone calls to various family members during which he threatened them with bodily harm.. . lie reported his alcohol intake increased to approximately 30 beers and up to 1 'A pints of tequila per day!., .Mr. Mooney remembered multiple admissions Tor alcohol detoxification at various centers in Chicago, but denies other psychiatric inpatient admissions. ..Mr. Mooney arrived at PMC Rochester on July 29, 1999. He was uncooperative with the intake process and was very loud, threatening and physically agitated- lie denied symptoms of depression. His mood was angry. Clinicians noted no overt signs of a thought disorder or gross cognitive deficit.lie reportedly pulled a toilet seat off the watt, stating; Til kill anyone that comes near me.’.He received several additional incident reports during the first week of his stay at FMC Rochester. He remained in the locked unit for his entire stay, due to extremely disruptive and threatening behaviors at various times throughout (he evaluation period.The following morning, he apologised to the Officer and asked fór a pen and paper to write apologies to all the staff members he had offended. He was observed by staff to be calm, articulate, lucid, and coherent during interactions that day.

Three days later, however. Mr. Mooney refused to put on leg irons for his physical examination. Despite being informed of the reasons for ihe leg irons, Mr Mooney became irate, loud, and argumentative and he was noi redirectable. Similarly, on August 3, 1999, he requested Tylenol for tooth pain and when lie was told he could not have a larger dose than that which was ordered, he became verbally abusive and demanding. Finally, afler receiving an order foi more medications, the nurse noted that he controlled his behavior for several minutes to enable her to open the trap door. She reported that once the trap door was opened, he slapped the medications and water ofT the trap door She reponed that he stated, ‘next time you reach your arm over hete. I will f — ing pull it off. Write me up you f-ing bitch.'....He began banging and pounding on his cell wall and door and would not respond to redirection. The next day, he was observed by staff trying to remove his desk from its bolts in the floor and wall. He reportedly made threats to harm staff with the desk. He succeeded in pulling the desk out of its floor bolts, continuing to make threatening comments toward staff He hid under the bed so he could not be effectively monitored, lie also threw food around his cell on occasion and pounded on the wall of his cell, yelling at the inmate next door. ‘I get angry easily '... When the defendant returned from his (denial) appointment, he demanded pain medication and when this was not delivered promptly, he flooded the toilet in his cell while laughing and swearing at the staff. In total, Mr. Mooney received, incident reports for making verbal threats, refusing to obey orders, 2 counts of destruction of property, and multiple counts ofinsolcnce. He was round competent and responsible for all the charges. The majority of his behavioral outbursts appeared to be in response to clear precipitating factors, often involving his requests and demands not being immediately gratified. He exhibited no apparent psychotic symptomatology during the course of Ids evaluation. He demonstrated no confusion or disorganization of thought and consistently denied auditory and visual hallucinations He slept and ate well, he was active, and lie displayed no problems with concentration and memory.”

“While he has evidenced some disruptive and destructive behavior while at FMC-Rochestcr, these behaviors appeared volitional and seemed to be a reaction to specific piecursors This contrasts with what one would expect of an individual in a manic state... .The fact that there was no mention in available records of the use of psychotropic medications suggest that the admission (at Chicago Reed Hospital) was related to the defendant's use of alcohol, as lie asserts Mr. Mooney’s behavior during his stay at FMC-Rochester suggests he has a severe personality disorder that includes antisocial and bordeiftne (psychotic) personality traits, although the defendant does not appear to meet full diagnostic criteria for either personality disorder. Like individuals with borderline personality disorder, the defendant has frequently displayed affective instability, his moods are markedly reactive to stress's, leading to intense expressions of anger, irritability and dysphoria that can quickly abate when the stressor is removed. He has displayed inappropriate, intense anger and difficulty controlling his temper.Dx -alcohol dependence, in early ful remission in a controlled environment and personality disorder, NOS with borderline and antisocial Uaits,. ..He has proven his ability to refrain from disruptive behavior during the latter part of his stay. The greatest potential obstacle for his participation in the legal process is attributable to his maladaptive personality characteristics and the related danger that he may choose to display inappropriate or disruptive behavior in court ot during interactions with defense counsel. His potential unwillingness, however, should not be confused with an inability to participate in the proceedings or collaborate with his attorney if lie decides to do so."

Summary: In my carefully considered opinion, the above report has contradictions. There would be no logical, conscious, adult reason why anyone would act so badly while in prison. What would Mr. Mooney have to gain in a logical adult sense? However, it is my opinion that, as a result of his unconscious (infantile) thinking and logic, he might be masochistically seeking severe and long-lasting punishment, severely negative attention and/or he might be expressing hatred toward the prison authority figures, being displaced from his original family whose members he clearly has hated for many years. Indeed, he made numerous threats to them of bodily injury. He threatened to kidnap their child and cut her Finger off to prove that she was in his possession and as a punishment to his relatives! Clearly, he was cold sober during the course of the FMC evaluation, yet he behaved in an extremely hostile fashion. Surely, this could not be attributed to alcohol intoxication or withdrawal, and he was not treated for such. In fact, 1 observed the precise, same thinking and behavior (after many months of sobriety) during my examination of him in the jail.

It is obvious that Mr. Mooney is highly intelligent and articutate, and I would concur that he can understand all that is happening in a superficial, intellectualizcd way, but I strongly disagree that he has more than minimal capacity, at an emotional level, to understand the seriousness and precariousness of his present and future position. The FMC admits that he reacts severely to known precipitants. Of course that makes sense. A grossly psychotic person does the same, but his perceptions arc so idiosyncratic, that often it is not possible to connect the reactive thinking and behavior with a specific precipitant, Therefore, I state that he is not and has not been psychotic in the strict definition of that diagnosis, however, his ability to react rationally to common, normal adversities is almost non-existent. Evidence for this is supplied by the FMC report. I strongly believe that it is naive and unsophisticated of FMC to state, “these behaviors appeared volitional.” They surmise that his reactions were volitional and consciously goal-directed. It would make no adult, logical sense at all for anyone to react this way, especially with the consistency as Mr, Mooney did. His almost paranoid misperceptions of common adversities are responsible for his severe reactions. With regard to the FMC statement that he does not suffer firom depression, how could anyone with such a history and with no emotional connection with humans (or animals) not be significantly and chronically depressed? I maintain that his terrible self esteem, his self-hatred and his inability to have any functional human relationships have produced a severely chronic, affective depression which he consciously denies, yet defends against by the terrific rage and violent acting out behavior which has been duly recorded. The non-use of psychotropic medication at Reed Hospital does not necessarily imply the diagnosis of only alcoholism, or indicate a lack of serious mental illness, but may indicate that such a diagnosis was not made. It also may have been due to his refusal to take any medication.

I spoke with the defendant’s attorneys, Thomas Durkin and Partrick Blegen, regarding their personal visit with the defendant on 3/tl/OO and their conversation with Mr. Mooney on 3/13 per phone, It is my understanding that at the 3/11 meeting, Mr. Mooney prematurely and abruptly terminated the meeting and demanded a different attorney. This would be consistent with his sudden and impulsive reactions to stress already mentioned. It is my understanding that during the telephone conversation of 3/13 between Mr. Mooney and his attorneys, he had no recollection of having demanded different attorneys and also was adamant that he could cooperate with his attorneys and did not wish for the issue of Competency to Stand Trial to be raised.

Conclusion: He suffers from severe and chronic major depression, recurrent, with easily triggered (perceived) threats to his self-esteem, uncontrollable, explosive rage, borderline psychotic and antisocial features, as wet) as atcoholism,. the latter now being in remission only because he is incarcerated. The precipitants, frequency and intensity of his rages are unpredictable. During them, he would most likely he very dangerous.

When threats to his self-esteem and his responses with rage occur, he is emotionally blinded, thereby making cooperation and understanding impossible. He refuses to lake medication, especially neuroleptics, which would, more or less, protect him against this mental anguish and insure his competency and his ability to stand trial. During his less stressful times, even though he suffers from a mental disease, I believe that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense. Therefore, he would be fit for trial. However, it is not possible tu know when what quality and quantity of stress would present itself, and it is most likely that at some points during the course of his trial, his thinking and perceptions would become confused and disorganized and rage would occur. During those times, he would • not be capable of assisting in his defense, would be mentally incompetent and, therefore, not fit for trial.

3/23/2000. Today 1 received a (collect) call from David Mooney. He stated that he read my report, given to him by his attorney, and was going to "tear it up and throw it into the toilet.” His voice was loud and very angry. He accused me of denying that I was a psychiatrist when 1 examined him in the jail, 2/14/2000. He used much profanity. When 1 again suggested that he stop threatening people with harm, he re-affirmed that he had no respect for the authorities, would not "kiss their a. and would not give respect to "your government.” He seemed to have no recollection of that fact that his attorney had notified him of my pending visit for the exam on 2/14/2000, that I indeed identified myself as a psychiatrist sent by his attorney to help him, and that he told me, during the exam,. “1 could kill you (too) with your pen.”

I called your office to relate this conversation with you, and you informed me that you also spoke with him a day or two earlier. You stated that Mr. Mooney was rational and again expressed his desire to not be found unfit for trial; that he felt he could be calm and peaceful in the courtroom. However, later in your conversation with him, he again became irrational, very angry, loud and threatening.

These recent behaviors further document the fact that Mr. Mooney can easily • be triggered to become vety hostile and unlrusting, with its attendant forgetfulness and an unawareness of what he is expressing or an amnesia for those moments.

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Richard S. Abrams, M.D..S.C

OtTlm: 2800 N. Sheridan Rd„ Suite 206, HIM) W. Central Ave., Suite 404, Chicago, IL 60657 Arlington fits., IL 60005

Mail address: P.O. Box 148033, Chicago, IL 60614, USA

TEL: 1 773/348 7003 FAX: 1 847/256 7880 E-Mail: Abraham198(a)AOL.com

Ctrtif. Amcr. Bd. Psychiatry

Mr. Thomas Durkin and Patrick Blegen, 3/23/2000

53 W. Jackson Btvd. Re: David Mooney

Chicago, IL 60606

Dear Mr.’s Durkin and Blcgcn,

Today 1 received a (collect) call from David Mooney. He stated that he read my report, given to him hy his attorney, and was going to "tear it up and throw it into the toilet.” His voice was loud and very angry. He accused me of denying that 1 was a psychiatrist when I examined him in the jail, 2/14/2000. He used much profanity. When I again suggested that he stop threatening people with harm, he re-afTirmed that he had no respect for the authorities, would not “kiss their a... .s” and would not give respect to “your government.” He seemed to have no recollection of that fact that his attorney had notified him of my pending visit for the exam on 2/14/2000, that I indeed identified myself as a psychiatrist sent by his attorney to help him, and that he told me, during the exam, “1 could kill you (too) with your pen.”

1 called your office to relate this conversation with you, and you infoimcd me that you also spoke with him a day or two earlier. You stated that Mr. Mooney was rational and again expressed his desire to not be found unfit for trial; that he felt he could be calm and peaceful in the courtroom. However, later in your conversation with him, he again became irrational, very angry, loud and threatening.

These recent behaviors further document the fact that Mr. Mooney can easily be triggered to become veiy hostile and untrusting, with its attendant forgetfulness and an unawareness of what he is expressing and/or an amnesia for those moments.

Sincerely,

RA/js

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1 . All further references to Title 18's provisions will simply take the form "Section—

2 . As background for Dr. Abrams' testimony, his March 15, 2000 letter report to Mooney's counsel (Mooney Ex. ,1) and his later March 23, 2000 follow-up letter (Mooney Ex. 2) are also highly supportive of Dr. Abrams' diagnosis. Those exhibits are also attached to this memorandum opinion and order.

3 . Dr. Abrams concluded his testimony during the hearing by characterizing Mooney as very dangerous, with the potential that during one of his episodes of uncontrolled and uncontrollable rage he "could kill someone or tear him apart.” That evaluation must also be viewed as realistic, coinciding as it does with the extreme manner in which Mooney's spells of rage have manifested themselves.

4 . With Mooney and his counsel having waived a jury trial on the criminal charge against him, as Mooney was unquestionably competent to do, this Court conducted the first day of what was anticipated to be a short bench trial. During the course of that trial day this Court made some evidentiary rulings against the prosecution and other evidentiary rulings against the defense. At the conclusion of the day Mooney reacted with extreme and frightening violence in direct consequence of the adverse rulings, even though his counsel had apparently told him that they believed things were going quite well in substantive terms.

5 . Mooney has already been held in custody for an extended time frame, so much so that he has said at one point during the proceedings that if he were to be found guilty or to plead guilty (as he is not prepared to do), the Sentencing Guidelines calculation would call for his immediate release. This Court has not of course explored that issue, which does not now pose a matter ripe for judicial determination because it is entirely hypothetical. And because of the proper constraints on judicial involvement that are contained in Fed. R.Crim.P. 11(e)(1), this Court is also unaware whether any consideration may have been given to the possibility of a North Carolina v. Alford plea, which would not involve an admission of guilt on Mooney's part but could cause his prompt release from custody if he is right.