NO WITNESS = NO CASE (Installment 7)
RE: NEW HAMPSHIRE DEPARTMENT OF CORRECTIONS, OFFICE OF FORENSIC EXAMINER’S (OCTOBER 13, 2009 FORENSIC EVALUATION REPORT) (hereinafter "REPORT")
The intent of Installment #7, and other upcoming installments – will be to further explore the legal issues of "Standing and Capacity". In #7 the question is one of evidence: Whether State’s REPORT "Testimony" met its "clear and convincing" or even "preponderance" standard burden that is required of it in order to deprive a citizen, in this case the DEFENDANT, of her Fourteenth Amendment Rights to Due Process to argue her "Affirmative Defense".
NOTE: If you are a new Reader of this series "NO WITNESS = NO CASE", you may want to begin with reading the six prior installments before you read this one. The Series main objective is to lay out DEFENDANT’s rebuttal argument to the State’s REPORT "Testimony" that was faxed to the Laconia District Court [LDC] in re: 09-cr-1293-4 and 09-cr-4147 (in both cases the DEFENDANT is charged with misdemeanor criminal trespass) minutes prior to the hearing on the merits of the May 15-16 arrests in re: 1293-94. The REPORT "Testimony" was also submitted to the court in re: 09-E-4147: the subsequent arrests of the DEFENDANT were after the Belknap County Superior Court GRANTED DEFENDANT’s request for a Temporary Restraining Order against Waukewan Holdings, LLC.
At this point the Readers should be aware that it has been publicly reported that in 1831 in re: Southern v. Mendum, 1831 WL 1104, at * 7 (N.H. 1831) The New Hampshire Supreme Court found that : ("[T]he interest of the mortgagee is not in fact real estate, but a personal chattel, a mere security for the debt, an interest in the land inseparable from the debt, an incident to the debt, which cannot be detached from its principal."). Consistent with New Hampshire case law in re: Carpenter v Longen 83 US 271274, (1872) US Supreme Court found that "An assignment of the NOTE carries the mortgage with it, while and assignment of the latter alone is a nullity…." (These legal issues will be explored further in Installment #8, but for now they may answer some of the Installment #6 question as to whether the State had ‘clean hands’ when it had the ex-parte communication with the Belknap Superior Court for the purpose of changing the above TRO Order.
The DEFENDANT’s goal is to impeach the State’s REPORT, and lay out possible motives for the State’s actions to arrest, and diagnose DEFENDANT as ‘Not Competent’ to stand trial, due to a "Delusion Disorder" in order to prevent DEFENDANT from raising her "Affirmative Defenses" with the LDC.
Serial readers will recall that the State’s REPORT "Testimony" was that "a hallmark feature of (delusional disorders), and while the content is presumably paranoid, there is a certain grandiose quality to who she has written to and presumed a response, and how far reaching she believes the outcomes should be", and, therefore, the State concluded DEFENDANT must be "paranoid" to have expected any positive "outcomes" in response to her "prolific writings and grievances".
On file, in the Record of the above Docketed matter is one such "prolific writings" in the form of a pro se Motion. This Motion was submitted to the Court with a request that the Court grant it prior to, or from the bench the day of the Restoration of Competency Hearing. The Motion was never reached by the LDC:
MOTION Pursuant to NH Rules of Evidence Article VII. Opinions and Expert Testimony – Rules 702-705, Disclosure of Facts or Data Underlying Expert Opinion (Please note: Instead of reprinting this Motion in its entirety it is recommended that Reader review the attached link before proceeding).
The Readers will note that incorporated into DEFENDANT’s above Motion is the fact that:
- The Court already has in its possession the November 4, 2009 Complaint that defendant Allan aka Allan Sovik filed with the New Hampshire Board of Medicine RE: Complaint Petition of Licensee Misconduct of Dr. Daniel Comiskey and Dr. Nicholas Petrou while conducting a June 16, 2009 Court Ordered Forensic Competency Exam with respect to Medical Misconduct by the authors of the "Report". (Please note: it is also suggested that Readers, in order to gain a full comprehension of the extent of DEFENDANT’s efforts to protect her due process rights within the State of New Hampshire’s governmental system, a full and fair reading of her "grievance" will be edifying.)
Incorporated on page three (3) of the above cited Complaint are several important definitions the Readers may want to understand going forward:
- Competence to stand trial: "The legally determined capacity of a criminal defendant to proceed with criminal adjudication. Jurisdictional statutes and case law set out the criteria for competence to stand trial".
- Adjudicative competence: "The terms "adjudicative competence," "competence to proceed with adjudication," "competence to stand trial" and "fitness to stand trial" are used interchangeably throughout the Guideline. These concerns encompass a defendant's participation, not only in a courtroom trial, but in all the other proceedings in the course of a criminal prosecution."
The American Academy of Psychiatry and the Law (AAPL) Guidelines encourage:
- "Psychiatrists who undertake examinations of adjudicative competence should conduct these evaluations properly.
- They should know the legal definitions of competence to stand trial in the jurisdictions where they practice.
- They should understand the essential elements of a competence evaluation and should have sufficient professional education, training, and experience to acquire the clinical data relevant to an evaluation of competence to stand trial.
- They should know how to apply their specialized knowledge in a way that permits them to address the specific legal issues related to adjudicative competence (Ref. 138, 7-3.10, p 130).
- At the same time, psychiatrists are ethically obliged to refrain from testifying about matters that lie outside their expertise.
- "Psychiatrists should strive to provide courts with opinions and testimony that are honest and as objective as possible Psychiatrists should guard against the potential for bias or distortions of their opinions that may arise unintentionally out of a desire to satisfy the retaining attorney."
- "Psychiatrists should make sure that they have adequately considered sufficient relevant data in formulating their opinions on competence. They should arrange with courts or retaining attorneys to obtain any additional information needed to arrive at an accurate opinion. They should note in their reports if they have requested but have not received information (e.g., hospital records or information from defense counsel) that may be relevant to their conclusions."
- Evaluations of adjudicative competence according to the AAPL Guidelines "are clinical assessments of a defendant's ability to participate in criminal proceedings. Competence evaluations are neither retrospective (as are evaluations of criminal responsibility) nor prospective (as are post conviction evaluations); they focus on the defendant's present functional level, and they emphasize the evaluee’s mental functioning and capacities rather than the psychiatric diagnosis."
- To make such an assessment, the psychiatrist asks questions that will lead to a determination of whether competence-related abilities are "sufficiently present." Bonnie182 has characterized these abilities as falling into two key functional domains: "competence to assist counsel" and "decisional competence."
- The AAPL Guidelines make it a point to state that "In most competence evaluations, collateral data can help psychiatrist formulate and support their opinions. By providing additional perspectives on the defendant, collateral sources help the evaluating psychiatrist gain a more comprehensive understanding of the information about the defendant's current mental state and mental abilities than was derived from the interview. Sources such as family members, friends, and employers can provide information about a defendant's level of functioning and visible symptoms.
- And particularly when assessing restorability, AAPL Guidelines remind "psychiatrists that they should bear in mind that research on competence restoration shows that most individuals referred for treatment after being found incompetent do in fact become competent to stand trial.232–236 Summarizing previous research findings in the mid-1990s, Nicholson and colleagues concluded that "the ability of clinicians to predict competency restoration is poor, at least when compared with the base rate of failed restoration" (Ref. 209, p 373).
- The AAPL Guidelines mandate that the ethical reasons for the diagnoses should not be biased in favor of a pre-desired outcome of the Report.
- If the diagnosis turns on a fact in dispute (for example, whether the defendant's Relevant History is based upon years of substantial research into public records supported by subsequent indictments and convictions based upon Petitioner’s testimony under oath), the psychiatrist should provide an explanation of how the disputed fact affects the differential diagnosis.
Given the preceding considerations, many psychiatrists refrain from expressing their opinions on the ultimate issue (in this instant matter: Criminal Trespass and DEFENDANT’s "Affirmative Defenses") unless the jurisdiction requires it. The question that was raised in Installment #6 is: Whether the jurisdiction required the REPORT to fit the "Testimony" that State required? Was the State "vindictive"?
In DEFENDANT’s above cited Motion to the LDC the relief that she requested was:
- That the Court Order from the bench pursuant to NH Rules of Evidence 705 that "The expert[s] will be required to disclose the underlying facts or data on cross-examination."
- And, for any other relief that is just and mete.
The LDC record will show that the Motion was never recognized by the court. Instead the LDC Ordered from the bench that DEFENDANT was NOT restorable to competency, and therefore, she lacked the "Capacity" to raise her "Affirmative Defenses".
At the very least the State is consistent, because no affirmative action was taken on DEFENDANT’s November 2009 above cited letters to the NH Board of Mental Health or the NH Medical Board. Below is a summary of the relief that DEFENDANT sought in her November 2009 letters:
- If the Board were to conduct an investigation into whether Petitioner’s narrative as presented in the Report is delusional, or whether it is based on facts, or at the very least circumstantial evidence that can be verified, particularly with the subpoena power of the Board: the Petitioner, her family, and associates who have Affidavits already on record would be available to be questioned. Considering, the 8/20/09 e-mail from the OIG of US DOJ, perhaps the Board would make inquiries of all the referral Agencies named.
- One Clinical Indicator of Delusion Disorder [15 The disturbance is not due to the direct physiological effects of a substance (eg, a drug of abuse, a medication) or a general medical condition.] requires a certain degree of physical and neurological testing to see whether the Patient is/or has been suffering from substance abuse; or, has a neurological abnormality that could be causing the alleged observed symptoms that contributed to the Report. The Petitioner will categorically state for the record that she was not tested for substance abuse, required to be tested or tested for any neurological abnormalities, nor was she administered any of the AAPL Guideline test to include the: Mac-CAT; CST; CAI; GCCT;IFI-R;CADCOMP-272, among other AAPL Guideline suggested clinical tests.
- If the Board would deem this testing to be appropriate in order to conduct a thorough investigation into whether Misconduct was committed by the State of New Hampshire Office of Forensic Examiners while obeying the June 16, 2009 Order by the Laconia District Court Judge, the Petitioner would consider the needs of the State as balanced against her Constitutional Rights. It would appear to Petitioner that a reasonable Board would want to investigate this Petition thoroughly, in order to make certain that no misconduct occurred. Petitioner’s complaint is a serious one, but against the back drop of such a "diagnosis of personal destruction’: a necessary one.
And, finally the DEFENDANT informed the State’s Agencies of both State and Federal laws, which should be seriously considered prior to making their final determinations:
- There is a law on the Federal Books titled RICO which stands for the Racketeer Influenced and Corrupt Organizations Act (18 U.S.C. § 1961), a law that increases the severity of penalties for crimes performed in conjunction with organized crime. The law states that any person or group who commits any two out of a list of 35 crimes (known as racketeering activity in the U.S. Code) within a decade and can be determined to have committed them with similar results or similar intentions can be charged with racketeering.
- Perhaps, Petitioner has merely found facts that could be used against certain defendants in a RICO case. Logic would expect that those potential defendants would prefer to impeach the witness. What better way to destroy the credibility of a witness than to label that witness psychotic, with a Delusional Disorder? NO WITNESS = NO CASE.
The DEFENDANT also quoted several New Hampshire Supreme Court cases that extended certain due process rights to the DEFENDANT and made certain requirements of the State’s Prosecutors. Several of these decisions are cited below:
- The New Hampshire Supreme Court in Petition of Bagley, 128 N.H. 275, 284 (1986), stated that "[t]he general rule is that a person's liberty may be impaired when governmental action seriously damages his standing and associations in the community." "We also "recognized that the stigmatization that attends certain governmental determinations may amount to a deprivation of constitutionally protected liberty." Bagley, 128 N.H. at 284. Thus, we find ample support in our jurisprudence for the proposition that reputational stigma can, by itself, constitute a deprivation of liberty deserving due process.
- The Court continued to find that "Accordingly, we hold that competency determinations sufficiently implicate reputational interests to warrant the protection afforded by the State Due Process Clause. See Harris v. Nashville Trust Co., 162 S.W. 584, 585 (Tenn. 1914) ("The enjoyment of private reputation unassailed is a right entitled to the protection of the law and of the Constitution as much as are the rights to the possession of life, liberty, or property."); cf. R. v. Com., Dept. of Public Welfare, 636 A.2d 142, 149 (Pa. 1994) (recognizing that Pennsylvania's State Constitution expressly recognizes reputation as a fundamental interest enjoying due process protection).
- Guaranteeing some minimal process guards against the difficulty of undoing harm once visited upon a person's good name. Cf. Goldberg v. Kelly, 397 U.S. 254, 263-64 (1970). In instances such as the present one, a person may not immediately suffer the more tangible effects of such a determination. We have long recognized that some forms of reputational harm can safely be assumed. See, e.g., Lassonde v. Stanton, 157 N.H. 582, 593 (2008) (discussing recovery of damages for harm to reputation without proof of special damages under doctrine of libel per se). [Recall that it was the State that made the REPORT public]
- The Court in State v Veale found that "Having concluded that competency determinations can potentially damage the protected interest in reputation, we consider what process is required to protect that interest. See McLellan, 146 N.H. at 114."
- The Court continued in State v Veale to find that "After the competency issue has been raised, the trial court "may make such order for a pre-trial psychiatric examination of such person" to be "completed within 60 days after the date of the order." RSA 135:17, I (2005). RSA 135:17, II (2005) permits separate competency evaluations upon request of the parties. RSA 135:17, II(a)-(b) speak to the purpose and substance of such evaluations. RSA 135:17, III (2005) requires specific findings as to the ability to restore competency if found incompetent. The defendant may appeal as of right and obtain a review of the merits. See Sup. Ct. R. 3 (defining "Mandatory appeal" and "Decision on the merits").
- In the Petitioner’s case the charges were dropped prior to the case being heard by the Judge at the scheduled hearing on October 13, 2009. Therefore, there was no chance for rebuttal in the normal process as anticipated by the above law. [Recall that these letters were written in November 2009. In subsequent hearings before LDC, DEFENDANT’s due process rights pursuant to NHSC case law rulings were not restored, nor was her competency, i.e "Capacity"]
The DEFENDANT continued in her November 2009 letters to state:
- "An official branding of legal incompetence unquestionably entails some degree of social stigma. Cf. In re Richard A., 146 N.H. 295, 298 (2001) (recognizing "loss of liberty and social stigmatization" of commitment proceedings and describing them as "substantial"). This stigma may harm the defendant's own self-conception, see generally Mitnick, supra, and adversely affect a variety of liberty and property interests. Specifically, the defendant points to his "ability to conduct and control civil litigation," the potential estoppel effect of the incompetency finding in other proceedings, "all manner of professional licensing," employment decisions, "willingness of others to engage in commercial transactions," the ability to travel internationally, and finally the "right to purchase, possess, and sell firearms in some jurisdictions."
- "On 10/22/09 Petitioner filed a Petition for Annulment with the Laconia District Court. That Petition is still pending. The Petitioner requested an investigation by the Prosecutor into several troubling aspects of the case to include the October 13, 2009 Forensic Examination Report, which is the subject matter of this instant Petition." [As of this posting 3 years later, LDC never responded to DEFENDANT’s request for an internal investigation.]
- "Clearly the weight of the Report looms large on Petitioner’s ability to resume a normal life. The bias toward the criminal justice system’s reliance on such reports is echoed by the NHSC. To wit: "Although competency is ultimately governed by a legal standard, the determination is largely based upon medical observation and testimony. See RSA 135:17; State v. Briand, 130 N.H. 650, 653 (1988) (recognizing that court has inherent authority to order a defendant to submit to psychiatric evaluation)."
"And finally the NHSC found that"[A] fair opportunity for rebuttal" is "among the most important procedural mechanisms for purposes of avoiding erroneous deprivations." Wilkinson, 545 U.S. at 226. Thus, had the defendant requested to testify or call other witnesses at the competency hearing, due process may well have afforded him that right. See People v. Harris, 18 Cal. Rptr. 2d 92, 98 (Ct. App. 1993); cf. 18 U.S.C. §§ 4241(c), 4247(d) (2000) (stating that federal defendant should be afforded opportunity to testify and call witnesses at competency hearing)."
Since the opportunity ‘for rebuttal’ was not afforded the Petitioner in a court of law, the Petitioner’s only option is to go back to the source of the Report, which would be a thorough investigation by the Board in order to determine whether MISCONDUCT was committed in the preparation of the Report by the Office of Forensic Examiner. And, if MISCONDUCT were to be found then the Report should be RETRACTED in its entirety."
Serial Readers already know that the LDC accepted without question the State’s REPORT "Testimony". There was no cross examination, as required by its own case law. Neither of the State Agencies, to whom the November letters were addressed, took affirmative action to investigate. The already posted Dick Tracy letter from the New Hampshire Department of Justice makes it clear that NH DOJ is not going to use its discretion to allow an independent investigation to be opened into the High Birches related matters.
In upcoming installments, the DEFENDANT will show that the various Agencies of State of New Hampshire government are consistent with their continuing non-responsive "Cover-Up" to legitimate "Grievances" of its citizens … in installment #8 the issues of FDIC and its successors in interests "Standing" to foreclose on the BankEast naked mortgage will be explored, among others…