In late October, 1991, Jerry Lee Robertson and his wife Cassie, were living on the streets in Salt Lake City, Utah. At the Salvation Army they met Gerald Thomas, who offered to let them stay in his apartment for a few days. On the fifth day, Jerry Robertson and Thomas argued. While Thomas was asleep, Robertson got Cassie to hit him on the head one time with a hammer. Thomas woke up and Robertson struck him in the head with the hammer approximately eleven times, killing him, The Robertson's were apprehended in California and extradited to Utah.
Cassie pled guilty to murder and was sentenced to five years to life. Robertson, however, on June 8, 1992, filed a competency petition claiming that he was not competent to stand trial. Two court-appointed doctors concluded he was incompetent. One of the primary symptoms of mental incompetence relied upon by these doctors was Robertson's inability to express or understand verbal communications. But the doctors acknowledged that patient cooperation is very important in diagnosing competency and that without it any test result was questionable. One doctor conceded that Robertson's reluctance to talk about the murder could be attributed to choice rather than inability. The second doctor acknowledged that there was a possibility that he had not been entirely honest with her. Nonetheless, the State stipulated to the findings, and the trial court committed him to the Utah State Hospital on June 26, 1992. But on April 23, 1993, a State Hospital administrator informed the court that Robertson was competent. The court also received reports from doctors there that he was malingering.
The trial court then held several hearings on the issue of his malingering. There was evidence presented, that when Robertson was escorted from California to Salt Lake City he laughed and joked during the trip, exhibiting no signs of speaking difficulties. Also among those who testified were a nurse and a clinical worker at the State Hospital, who stated that he showed markedly different speaking ability depending on whether he was being formally observed or merely dealing with staff. The clinical worker was told by Robertson that his lawyers “knew this was an act.” Another doctor who evaluated him with multiple I.Q. tests attributed the widely varied results to his uncooperative and faking behavior, and concluded he was malingering and competent to stand trial. Three other doctors also testified that he was feigning incompetence. The court also concluded he was feigning, based on its own observations and Robertson's responses to in-court questioning.
Having determined that Robertson was malingering, the court vacated the commitment order Robertson filed a second competency petition in March, 1994, which was denied, the trial court finding that Robertson's promise of future cooperation with mental health experts was not credible. But another evaluation was conducted, and this doctor concluded that Robertson was feigning incompetence.
He laughed and joked during the trip, exhibiting no signs of speaking difficulties.
After a trial, Robertson was convicted of murder and theft, and for the murder he was sentenced to a term of five years to life. On appeal, he contended, among other things, that the court erred when it concluded that he was competent. Essentially he argued that the court arbitrarily rejected the conclusions of the two court-appointed examiners who found him incompetent in favor of the other witnesses who claimed he was feigning.
Held: Affirmed. The Court said that the record revealed ample evidence supporting the trial court's determination of malingering, and that it was replete with evidence of his faking an inability to express or understand verbal communications. If Robertson had been consistently dishonest, said the Court, the June, 1992 determination of incompetence by the two doctors was not reliable, by their own testimony. The Court said that it could not conclude that the trial court's determination that Robertson was feigning incompetence was clearly erroneous.
 | Michael Welner, M.D. Chairman The Forensic Panel |
Dr. Welner comments: Attorneys, judges and prosecutors should always scrutinize a competency examination that contains conclusions based on limited responses of the defendant. Why, in Robertson, for example, were presumably qualified mental health professionals fooled by a competent defendant who was actually malingering? Actually, criminal competency examinations are vulnerable to errors in diagnosing malingering and in overlooking it, especially when a defendant who sits for an interview is guarded and withholding. Perhaps he is suspicious in a manner that precludes his collaboration on a defense; but the defendant may alternatively be intentionally uncooperative. In a twenty to sixty minute interview, it may be presumptuous of the examiner to believe he has the entire story.
In corroborating impressions about a withholding examinee, an examiner should seek out family members and loved ones who have been in touch with the defendant. Often, the emotions and quality of communication with significant others is a more accurate indication of the reasons a reserved defendant is not responding to his attorney or to the mental health professionals examining him. Of course, a spouse may divulge information which is damaging to the defendant, especially when he is faking ignorance or psychotic symptoms. But just as often, defendants who are guarded are labeled malingerers without full consideration of available information.
