UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

United States of America

v. Criminal No. 15-cr-161-LM Opinion No.

John J. Stone

O R D E R

On May 15, 2018, the court held a competency hearing with

respect to defendant John J. Stone. At the end of the hearing,

the court concluded that Stone is incompetent and not

restorable. This order explains the court’s decision.

BACKGROUND

In September 2015, Stone was indicted on charges related to

allegations that he fraudulently obtained Supplemental Security

Income benefits. The charges consist of two counts of

concealing events affecting the right to payment of social

security benefits; one count of making a false statement; and

three counts of wire fraud. In December 2016, defense counsel

moved for a competency hearing pursuant to

,

which the government did not oppose. The court granted the

motion.

The court’s task at the initial phase was to determine

whether Stone was presently suffering from a “mental disease or defect rendering him mentally incompetent to the extent that he

is unable understand the nature and consequences of the

proceedings against him or to assist properly in his defense.”

(d); see also United States v. Wiggin,

(1st Cir. 2005). The court ultimately held two

hearings, on January 24 and March 6, 2017. At the January

hearing, the court heard testimony from government-retained

expert Dr. Albert M. Drukteinis, a forensic psychiatrist. He

opined that, primarily due to a neurocognitive disorder, Stone

was unable to properly assist in his defense or rationally

participate in the proceedings. Dr. Drukteinis also opined that

Stone’s competency was not restorable.

At the March hearing, the court concluded on the record

that Stone was incompetent, based on Dr. Drukteinis’s thorough

and credible opinion. Importantly, the government did not

dispute Dr. Drukteinis’s conclusions.

Having come to that determination, the court was compelled

by statute to commit Stone to the custody of the Attorney

General for hospitalization and treatment.

(d).

This is so despite the undisputed determination that Stone’s

competence was not restorable. See, e.g., United States v.

Magassouba,

(2d Cir. 2008). The

justification for such mandatory hospitalization is that it

2 enables “medical professionals to accurately determine whether a

criminal defendant is restorable to mental competency,” United

States v. Strong,

(9th Cir. 2007), and gives

the Attorney General an opportunity to explore possible medical

options. United States v. Ferro,

(8th Cir.

2003); United States v. Filippi,

(1st Cir.

2000).

To that end, the statute required that Stone be

hospitalized “for such a reasonable period of time, not to

exceed four months, as is necessary to determine whether there

is a substantial probability that in the foreseeable future he

will attain the capacity to permit the proceedings to go

forward.”

(d)(1). Given Dr. Drukteinis’s

uncontroverted opinion that Stone was not restorable, the court

recommended that “the evaluation of the defendant be conducted

as expeditiously as possible.” Doc. no. 37 at 4. This was in

keeping with the case law, which emphasizes that, while “the

statute is categorical in determining who shall be incarcerated,

. . . it is much more flexible and case-oriented in determining

the length of incarceration.” Filippi,

.

Nevertheless, Stone was held for about four months, in what

was described as a “semi-locked” mental health unit at the

Federal Medical Center in Devens, Massachusetts. As was later

3 revealed during the testimony of Dr. Shawn Channell, a forensic

psychologist at FMC-Devens, Stone’s treatment over those four

months amounted to (1) an increase in his antidepressant

medication, and (2) exposure to the criminal-justice process

through meetings with mental-health professionals and a

“competency restoration group.” In the competency restoration

group, which consisted of nine classes over the course of two

months, Stone learned about various aspects of the criminal-

justice system.

In late September 2017, Stone was released, and the Warden

of FMC-Devens filed a certificate attesting that his staff had

found Stone to be competent. See

(e) (stating

that the director of the hospitalizing facility shall file a

certificate once it is determined that the defendant has

sufficiently recovered to be deemed competent).

The present issue, and the subject of the May 15 hearing,

is to determine whether Stone has been restored or is otherwise

restorable. Specifically, § 4241(d) states as follows: “If, at

the end of the time period specified, it is determined that the

defendant’s mental condition has not so improved as to permit

the proceedings to go forward, the defendant is subject to the

4 provisions of sections 4246 and 4248.”1 Id. § 4241(d). At the

hearing, the government presented the testimony of Dr. Channell

and Dr. Drukteinis.

Dr. Channell opined that Stone was restored to competence

over the course of his hospitalization. Dr. Channell believed

that Stone’s deficits were grounded more in his anxiety and

depression than a neurocognitive disorder. For that reason, Dr.

Channell claimed that by increasing the dosage of his

antidepressant medication and exposing him to the criminal-

justice process, Stone’s deficits—his perseveration, inability

to focus, etc.—diminished to a degree that allowed him to

meaningfully participate in his defense. Dr. Channell noted an

important caveat to his opinion, however: even with diminished

symptoms, Stone would need significant accommodations in the

trial or plea process to assist in his own defense. At trial,

accommodations would include slowing the pace of proceedings and

providing frequent breaks, while for a plea Stone would need

questions repeated and would need information simplified. Dr.

Channell further opined that if the court were to find that

1 Similarly, after a facility director files a certificate of competence, the court must determine whether “the defendant has recovered to such an extent that he is able to understand the nature and consequences of the proceedings against him and to assist properly in his defense.”

(e).

5 Stone is not competent, Stone would not benefit from further

treatment.

Dr. Drukteinis reiterated his prior opinion that Stone is

incompetent. He found Dr. Channell’s view unpersuasive for a

few reasons. Citing numerous facts from Stone’s medical

history, Dr. Drukteinis contended that Dr. Channell failed to

properly emphasize the role that Stone’s neurocognitive disorder

played in his inability to assist in his own defense. Dr.

Drukteinis was also skeptical of the efficacy of Stone’s

putative treatment. Dr. Drukteinis noted that the “increase” in

antidepressant medication was actually a return to the dosage

that Stone had been taking prior to hospitalization, and that

Stone’s mere knowledge of his charges and the criminal-justice

process would not alleviate the deficits that prevented him from

assisting in his own defense.

Relying on Dr. Channell’s opinion, the government took the

position that Stone had been restored to competence. Defense

counsel maintained that Stone was incompetent and not

restorable. At the end of the hearing, the court issued its

findings orally from the bench that Stone is incompetent and not

restorable—and indicated that a written decision would follow.

6 DISCUSSION

The court considers an extended analysis unnecessary.

Indeed, the ostensible dispute between the experts is more

illusory than real. Dr. Drukteinis opined that Stone could not

assist in his own defense, is incompetent, and is not

restorable. Dr. Channell all but explicitly acknowledged that

Stone could not assist in his own defense under normal

conditions, and he conceded that Stone would not benefit from

further treatment.

The court continues to find Dr. Drukteinis’s opinion

persuasive. His view is consistent with Stone’s medical history

and the available sources. By contrast, the court does not find

Dr. Channell’s opinion persuasive. Dr. Channell gives little

weight to the connection between Stone’s neurocognitive disorder

and his competence, despite, as Dr. Drukteinis explained, the

persuasive evidence showing such a connection. Furthermore, the

evidence demonstrates that Stone continues to have the same

difficulties with perseveration and focus, even after treatment.

Indeed, the court questions whether the educational classes can

even constitute “treatment” for Stone’s perseveration and

inability to focus. According to Dr. Drukteinis, whose

unopposed assessment this court adopted in its March 6 order,

Stone’s incompetence is based on his inability to assist in his

7 own defense, not on his lack of understanding of the nature or

consequences of the proceedings. The educational classes are

aimed more at the latter sort of deficit, which is irrelevant

here. Thus, Dr. Channell’s reliance on the classes as an

effective treatment renders his opinion particularly

unconvincing.

For these reasons, the court has no trouble concluding that

Stone’s condition “has not so improved,” and is unlikely to

improve in the foreseeable future, “as to permit the proceedings

to go forward.”

(d).

All that being said, this discussion obscures a more

salient issue lurking in the background, and that is the deep

inequity of the process to which Stone has been subjected.

Prior to Stone’s hospitalization, all of the parties agreed that

Stone is both incompetent and not restorable. The statute

nonetheless required that Stone be hospitalized for an

assessment as to whether he is restorable. In light of the

parties’ agreement and the unique circumstances, the court

recommended that the assessment be conducted “as expeditiously

as possible.” Doc. no. 37 at 4.

Yet, instead of undertaking that narrow inquiry on an

expedited basis, Dr. Channell decided to fully re-evaluate

Stone’s competency. At the hearing, Dr. Channell stated that he

8 followed the Bureau of Prisons’ standard procedure in evaluating

and treating Stone, but this was clearly no ordinary case. Four

months of needless re-evaluation and negligible treatment

followed, after which Dr. Channell concluded that, if the court

were to find Stone incompetent, Stone would not benefit from

further treatment. Stone was confined—in a prison hospital—for

far longer than was necessary to reach that limited

determination. At this point, the least that can be done is to

discontinue criminal proceedings and allow Stone to get on with

his life.

In sum, based on the record and testimony, the court

concludes that Stone cannot assist in his own defense, is

incompetent, and is not restorable. See

(d),

(e). Because Stone has already been released, there is no

remedy that the court needs to order at the present time. See

§ 4241(d); United States v. Ecker,

(1st

Cir. 1996). In addition, because the government indicated at

the hearing that it would not seek commitment under § 4246 or

§ 4248 if the court were to find Stone incompetent and not

restorable, Stone need not be held for further evaluation under

those provisions.

9 The court presumes that the government will act swiftly to

dismiss the charges against Stone. See United States v. Peppi,

No. 06-157,

, at *6 (D.N.J. Feb. 28, 2007) (“[T]he

Government customarily dismisses indictments against defendants

who . . . will never regain competency.”); see also Ecker,

.

CONCLUSION

For the reasons stated herein, the court concludes that

Stone is incompetent and not restorable for purposes of

(d).

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

May 29, 2018

cc: Bjorn Lange, Esq. Matthew Hunter, Esq. U.S. Probation U.S. Marshal

10