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UNITED STATES DISTRICT COURT DISTRICT OF MAINE UNITED STATES OF AMERICA ) ) ) ) ) ) ) )

v. DANEEK MILLER, DEFENDANT

NO. 2:10-CR-136-DBH-02

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE On May 10, 2011, the United States Magistrate Judge filed with the court, with copies to counsel, his Recommended Decision on Defendant's Competency to Stand Trial. (Docket Item 369). The defendant filed his

objection to the Recommended Decision on June 3, 2011. (Docket Item 383). I have reviewed and considered the Recommended Decision, together with the entire record, including the hearing transcript and the Bureau of Prisons psychologist's report; I have made a de novo determination of all matters adjudicated by the Recommended Decision; and I concur with the

recommendations of the United States Magistrate Judge for the reasons set forth in the Recommended Decision, and determine that no further proceeding is necessary. With respect to the primary issuethe defendant's ability to assist properly in his defense by consulting with his lawyerI certainly understand defense counsel's concerns about the difficulties of communicating with his

client and preparing the case for trial or other disposition. psychologist reached an unequivocal conclusion that the

But the defendant's

"competency-related skills are not significantly compromised by symptoms of a serious mental illness or defect, such that he would be unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense." Forensic Report of Miriam Kissin, Psy.D., dated

February 4, 2011 ("Kissin Report"), Gov't Ex. 1, at 13. What concerns defense counsel is what the defendant did on the sole occasion he met with him, what he did with a previous lawyer, and what he did with the BOP's forensic psychologist. According to the psychologist, when

current counsel attempted to discuss the case with the defendant, the defendant "hit himself in the face, pushed the table out of the way and banged on the window." Recommended Dec. at 7. The lawyer then terminated the

interview. Id. With the earlier lawyer, he hit his head on the wall and fell to the floor. Id. Similarly, the BOP psychologist could not conduct a "formal

interview regarding his competency-related capacities" because the defendant "interrupted the process by engaging in acting out behaviors." Kissin Report at 13. But the psychologist found that these behaviors are not caused by serious mental disease or defect, but instead are the latest in "a long-standing, documented history of volitional acting out behaviors. These behaviors are

intended to aid him in avoiding unpleasant experiences, consequences and situations." Id. at 12. The psychologist found that the behaviors were
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"historically adaptive" and unlikely to be discontinued "without significant

motivation to act otherwise. While his acting out behaviors will likely continue to undermine his relationship and cooperation with his attorney, as well as participation in court proceedings, it is important to note that it is predicated on goal-directed and volitional behaviors, rather than a major mental illness." Id. I am aware of the difficulty in making such distinctions (volitional vs. mental disease or defect) as neuroscience reveals more about how the brain actually works. And here the psychologist was candid that she did not know how to stop these behaviors on the defendant's part that have come to have a "characterological foundation." Id. But given the language Congress has used (requiring a finding "by a preponderance of the evidence that the defendant is 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 defense," 18 U.S.C.

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