# Petition for Writ of Certiorari — Wallace v. United States (No. 07-785)

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

Supreme Court, U.S.
L-&

Gi) ~FILe0

07-785 DEC 1 2 2007
No.___._ OF OE OF THE OLIBRK

IN THE
Supreme Court of the United States

ERIC WALLAC E,
Petitioner.
Vv.

UNITED STATES OF AMERICA,
Respondent.

Petition for a Writ of Certiorari
to the District of Columbia Court of Appeals

PETITION FOR A WRIT OF CERTIORARI

DAVID A. HANDZO

J. ALEX WARD

IAN HEATH GERSHENGORN*
JENNER & BLOCK LLP

601 Thirteenth Street, N.W.
Washington, DC 20005
(202) 639-6000

December 12, 2007 *Counsel of Record
ican Sac cpeneC mA en I we ae ASE a TT PETG, TET

1
QUESTION PRESENTED

Whether the Due Process Clause requires that
a defendant who has pled guilty nonetheless retains
the right to contest on direct appeal a trial court’s
competency determination.

1]

PARTIES TO THE PROCEEDING

There were no parties to the proceedings
below other than those identified in the caption of
this petition.

ill

TABLE OF CONTENTS

QUESTION PRESENTED
PARTIES TO THE PROCEEDING
TABLE OF CONTENTS

I.

Il.

IV.

There Is A Deep And Acknowledged Split
Over The Question Presented..............00...00..000e 12

The Decision Below Conflicts With This
Court’s Decisions And Betrays The Promises
Of The Right To Due Process. .......................000- 19

. The Conflict Is Recurring And Important........ 22

This Case Presents An Ideal Vehicle To
Se a a ee 27

ROE IO iiecaiscatsicksdencsacacessndceaieumanieummesicneauaesea 30

APPENDIX A

Opinion, United States v. Wallace, Nos. 04-CF-
299, 05-CO-1328, 2007 WL 2669564 (D.C. Sept.
13, 2007)

APPENDIX B

Order Denying Defendant’s Motion To Withdraw
Guilty Plea, United States v. Wallace, Criminal
No. F-7221-02 (D.C. Super. Ct. Oct. 27,

APPENDIX C
Transcript Dated November 10, 2003, Criminal
No. F-7221-02 (D.C. Super. Ct. Nov. 10,
I eaancueticutacci laut tee nixchiadenstedsnansunticibens 71a

APPENDIX D

Neuropsychological Evaluation Report Dated May

Vv

TABLE OF AUTHORITIES
CASES

Adams v. United States ex rel. McCann, 317
oy clea csacieckesnancaacesabansiiatoctpeale 23

Blackledge v. Perry, 417 U.S. 21 (1974)...8, 12,
20,

Brookhart v. Janis, 384 U.S. 1 (1966) ................ 2:
Cooper v. Oklahoma, 517 U.S. 348 (1996)

Drope v. Missouri, 420 U.S. 162 (1975)... 22, 23,
Dusky v. United States, 362 U.S. 402

Godinez v. Moran, 509 U.S. 389 (1993)......... 23,

Johnson v. United States, 631 A.2d 871 (D.C.
III ss icahinnicbiav dcanbanmmeseaee

King v. Cunningham, 442 F. Supp. 2d 171
(S.D.N.Y. 2006)

Menna vv. New York, 423 3
a euiamdintanni 8, 12, 20, :

Mitchell v. Commonwealth, No. 2000-CA-
001236, 2003 WL 1339283 (Ky. Ct. App.
Feb. 21, 2003)

Pate v. Robinson, 383 U.S. 375 (1966)............ 8,

People v. Armlin, 332 N.E.2d 870 (N.Y.
ee ducacagsenaxenasnanadcennsaieit 13,

People v. Frazier, 495 N.Y.S.2d 478 (N.Y. App.
i aiikainihiisdscvcnnsstaxsnrcaisnann«anencnaacabiienl 13

vi
People v. Parney, 253 N.W.2d 698 (Mich. Ct.
App. 1977)

People v. Seaberg, 541 N.E.2d 1022 (N.Y.

People v. White, 308 N.W.2d 128 (Mich. 1981)...
Robinson v. State, 373 So. 2d 898 (Fla. 1979)
Rock v. Arkansas, 483 U.S. 44 (1987)

Southall v. United States, 716 A.2d 183 (D.C.

State v. Augustine, 215 So. 2d 634 (La. 1968)...
State v. Cleary, 824 A.2d 509 (Vt. 2003)
State v. Garfoot, 558 N.W.2d 626 (Wis. 1997)....

State v. Wead, 609 N.W.2d 64 (Neb. Ct. App.
NE ccewubiiuesonen

Thompson v. Commonwealth, 56 S.W.3d 406
(Ky. 2001)

Tillman v. State, 570 S.W.2d 844 (Mo. Ct. App.
1978) 17,

United States v. Broadus, 450 F.2d 639 (D.C.
es 21

Williams v. State, 316 So. 2d 267 (Fla. 1975).....24
STATUTES

28 U.S.C. § 1257(a)

28 U.S.C. § 1257(b)

D.C. Code § 24-531.10
D.C. Super. Ct. Crim. R. 32(e)

MISCELLANEOUS

Richard J. Bonnie, et al, Decision-Making in
Criminal Defense: An Empirical Study of
Insanity Pleas and the Impact of Doubted
Client Competence, 87 J. Crim. L. &
Criminology 48 (1996)

Richard J. Bonnie, Vhe Competence of
Criminal Defendants With Mental
Retardation To Participate In Their Own
Defense, 81 J. Crim. L. & Criminology 419

Henri E. Cauvin, Guilty Plea in Slaying of Hill
Aide, Wash. Post, Jan. 6, 2004, at B1

The Merck Manual (17th ed. 1999)

U.S. Dep't of Justice: Office of Justice
Programs, Sourcebook of Criminal Justice
Statistics 2004 Table 5.46.2004, available
at http://www.albany.edu/sourcebook/

pdf/t5462004. pdf .........cccccscscescsssseseseesesesseeecees

9

ee

oD

PETITION FOR A WRIT OF CERTIORARI

Eric Wallace respectfully petitions for a writ of
certiorari to review the judgment of the District of
Columbia Court of Appeals in this case.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at
2007 WL 2669564 (D.C. Sept. 13, 2007), and is
reprinted in the Appendix to this petition (“Pet.
App.”) at la. The tral court’s competency
determination (Pet. App at 71a) is unpublished. The
trial court’s denial of petitioner’s motion to withdraw
his guilty plea (Pet. App. at 51a) is unpublished.

JURISDICTION

The court of appeals entered its judgment on
September 13, 2007. This Court has jurisdiction
under 28 U.S.C. § 1257(a)-(b).

CONSTITUTIONAL PROVISIONS INVOLVED

The Fifth Amendment to the United States
Constitution provides in relevant part that no person
“shal! be compelled in any criminal case to be a
witness against himself, nor be deprived of life,
liberty, or property, without due process of law.”

The Fourteenth Amendment, Section 1, to the
United States Constitution provides in relevant part
that no State shall “deprive any person of life,
lhberty, or property, without due process of law.”

STATEMENT
The Due Process Clauses of the Fifth and

Fourteenth Amendments unequivocally require that
no individual who is legally incompetent shall be

.
forced to answer a criminal charge. In the
proceedings below, the trial court determined that
petitioner Eric Wallace was legally competent to
stand trial for murder, despite abundant evidence to
the contrary. Unable to help his defense, Mr.
Wallace pled guilty, and then sought to argue on
direct appeal that his conviction violated Due
Process because he was not competent to stand trial
or enter a guilty plea.

In the decision below, the District of Columbia
Court of Appeals held that it could not review Mr.
Wallace’s constitutional claim on direct appeal,
because “the only issues that are appropriately
raised in an appeal from a conviction entered after a
guilty plea are the exercise of jurisdiction by the trial
court and the legality of the sentence imposed.” Pet.
App. 4a-5a (citation omitted). In other words, Mr.
Wallace had waived the right to assert his
constitutional competency claim when he pled guilty.
The court thus dismissed Mr. Wallace's direct
appeal.

The decision below implicates a deep and
acknowledged split among the federal courts and
state courts of last resort — a split that the D.C.
Court of Appeals expressly noted in its opinion. See
Pet. App. 5a-7a. Indeed, courts in Vermont, New
York, Kentucky, Michigan, and several other States
have held, contrary to the D.C. Court of Appeals,
that a guilty plea does not waive a constitutional
challenge to the competency of the defendant. They
have thus allowed such challenges to be raised on
direct appeal.

3

This split warrants this Court’s immediate
attention. The prohibition on trying a defendant who
is incompetent goes to the core of the Due Process
Clause. By denying defendants such as Mr. Wallace
a right to challenge their competence on direct
appeal, the decision below severely limits the ability
of those defendants to obtain review of their
constitutional claims, leaving them only the
opportunity to demonstrate that their conviction
constitutes a “manifest injustice.” For someone like
Mr. Wallace, whose compelling facts presented “a
difficult case” even under the narrow scope of review
employed below, Pet. App. la, that makes all the
difference.

This Court should thus grant review to
determine, consistent with the majority of courts to
have considered the issue, that Due Process requires
that a defendant who pleads guilty nevertheless
must be permitted to challenge his competency
determination on direct appeal.

1. Petitioner Eric Wallace was indicted in May
2003 on the charge of first degree murder in
connection with the stabbing death of Claude
McCants. The murder occurred on October 10, 2002,
just hours after Mr. Wallace was released from St.
Elizabeth’s, a federal mental health hospital in
Washington, D.C. Pet. App. 76a. Mr. Wallace had
been in custody at St. Elizabeth’s for eight months
after having been determined incompetent to stand
trial in connection with earlier misdemeanor
charges. /d. at 74a-76a.

In pre-trial proceedings on the murder charge,
Mr. Wallace asserted (through counsel) that he was

4

incompetent to stand trial, based on his substantial
mental impairments resulting from a lifetime of
diabetic comas and epileptic seizures. Pet. App. 80a,
110a. After conducting a hearing on the matter, the
court found Mr. Wallace competent. See id. at 92a-
93a. On January 5, 2004, Mr. Wallace pled guilty to
second degree murder. /d. at 3a-4a. The trial court
sentenced Mr. Wallace to a term of thirty-five years,
with five years of supervised release. Jd. at la, 52a.

2. Ample evidence supported Mr. Wallace’s claim
that he was not competent to stand trial. Since
childhood, Mr. Wallace has been treated for a
number of debilitating illnesses, which have only
increased over the years, rendering him in his
current severely incapacitated state. At age 9, Mr.
Wallace was diagnosed with Type I Diabetes
Mellitus, otherwise known as juvenile diabetes. Pet.
App. 110a; see also id. at 12a. This disease has
subjected Mr. Wallace to recurring episodes of
hyperglycemia and hypoglycemia — erratic and
abnormal swings in the content of sugar in his blood.
Id. at 12a. On a number of occasions, Mr. Wallace’s
episodes have been so extreme that he has gone into
acoma. Court of Appeals Appendix (“CA App.”) 180
(Letter from Dr. Hyde). This type of recurring
hypoglycemia, when accompanied with insulin shock,
is known to cause irreversible brain damage. /d.

Independent of his diabetes, since age 12, Mr.
Wallace has also experienced repeated epileptic
seizures, which have been resistant to treatment.
Pet. App. 12a, 8la. These seizures result in a loss of
consciousness, falling, and contractions. See The
Merck Manua/ 1403 (17th ed. 1999). In 1998, Mr.

5
Wallace’s condition escalated when he experienced
his first grand mal seizure. CA App. 183 (Letter
from Dr. Pickar).

These relentless health problems have stunted
Mr. Wallace’s ability to function in society. They
have also severely limited his ability to navigate the
judicial system. In fact, just prior to the instant
case, Mr. Wallace was repeatedly found incompetent
to stand trial in relation to several misdemeanor
assault charges stemming from incidents in early
2002. See Pet. App. 13a-14a n.14. Mr. Wallace spent
eight months in St. Elizabeth’s Hospital instead of
facing trial. Jd. Observing Mr. Wallace over that
substantial eight-month period and based on their
familiarity with him, government doctors at St.
Elizabeth’s found Mr. Wallace to be “severely
impaired.” Jd. One physician, Dr. Hugonnet,
determined that Mr. Wallace was “unable to manage
the basic concepts associated with competency to
stand trial.” /d. Another, Dr. Piquet, found that
“cognitive factors substantially impair his capacity to
have a factual and rational understanding of the
proceedings against him, and to properly assist
counsel with preparation of his defense.” ld.
Moreover, they found that it was “unlikely that Mr.
Wallace [would] attain competency in the foreseeable
future.” Jd.

Because Mr. Wallace never attained competency,
the judge in his misdemeanor case ruled that the law
required that Mr. Wallace be released. See Henri E.
Cauvin, Guilty Plea in Slaying of Hill Aide, Wash.
Post, Jan. 6, 2004 at Bl. The judge decided,
however, to hold Mr. Wallace for 72 hours to give

6

prosecutors enough time to appeal the decision. /d.
The U.S. Attorney’s office decided not to appeal, and
the District of Columbia never sought an order
seeking to have Mr. Wallace held until it was
determined whether he should be permanently
committed. Jd. Accordingly, on October 10, 2002,
Mr. Wallace was released from St. Elizabeth’s
hospital. Hours later, Mr. Wallace killed Mr.
McCants.

Returned to the confines of the criminal justice
system, Mr. Wallace again underwent a number of
tests that confirmed his continued incompetence to
stand _ trial. A thorough neuropsychological
evaluation conducted at St. Elizabeth’s after Mr.
Wallace was charged showed that Mr. Wallace
performs “below the cutoff level” on measures of

early dementia. Pet. App. 113a. Other tests
confirmed Mr. Wallace’s severely diminished level of
functionality. On the Wechsler Adult Intelligence
Scale, Mr. Wallace’s aggregate IQ was just 55,
placing him in the “severely impaired range” — below
the first percentile of the entire population. See id.
at 12a, 112a-113a. Electroencephalogram (“EEG”)
tests performed from 2000 to 2003 show increasing
brain deterioration, with a December 2003 EEG
indicating “markedly abnormal brain wave activity,
with slowing over the frontal lobes.” Jd. at 29a.

Through numerous evaluations, government
physicians determined that Mr. Wallace suffers from
core cognitive deficits even on his best days; his
dementia causes him to experience wild mood swings
and aggressive behavior, and renders him incapable
of understanding the core aspects of the judicial

7
process, including the concept of pleading guilty. See
Pet. App. 107a-120a; see also CA App. 180-82 (Letter
from Dr. Hyde); id at 183-85 (Letter from Dr.
Pickar).

3. At the competency hearing in the trial court,
even the prosecution’s own witnesses conceded that
Mr. Wallace’s mental capabilities were “in the
moderate to severely impaired range.” Pet. App. 16a.
Nonetheless, the experts hired by the prosecution
contended that Mr. Wallace was malingering.

That testimony was directly at odds with the
conclusions of the doctors at St. Elizabeth’s, who had
subjected Mr. Wallace to a battery of tests over his
months at the hospital and had found no signs of
malingering. See Pet. App. 112a. Commenting on
just one of these tests, one expert explained, “there’s
no way you can fake or malinger an abnormal EEG.”
CA App. 7 (Oct. 28, 2003 Transcript).

Moreover, the conclusions of the government’s
witnesses were deeply flawed. One of those
witnesses, Dr. Raymond Patterson, based his opinion
on a single interview, at which he did not perform a
test for malingering, or, in fact, any other psychiatric
or psychological tests. See CA App. 19 (Oct. 29, 2003
Transcript); id. at 40 (Oct. 30, 2003 Transcript) (“I
don’t do tests.”). Instead, Dr. Patterson asked Mr.
Wallace a few off-the-cuff questions and determined
that a “you got me” smile from Mr. Wallace — a
response mechanism entirely consistent with
cognitive impairment — was evidence of malingering.
See id. at 22 (Oct. 29, 2003 Transcript). Dr. Lally,
too, testified that Mr. Wallace was malingering even
though the two tests he performed on Wallace

8
showed no. sign of fabrication of cognitive
impairment. See Pet. App. 16a-17a.

Yet, their testimony was not even the most
egregious of that presented at Mr. Wallace’s
competency hearing. Dr. Oliver, a Legal Services
Division psychologist who provided the _ only
“neutral” evidence that Mr. Wallace was competent,
repeatedly contradicted and recanted his own
testimony regarding the testing he performed. Dr.
Oliver claimed at the hearing, for example, that he
had gleaned a great deal of information from Mr.
Wallace during his interview with him, such as the
nature of the charge, his identifying information, and
his mental health history. See CA App. 47, 51a-51b
(Oct. 30, 2003 Transcript). However, cross-
examination revealed that Dr. Oliver had filled in
many sections of his notes before ever speaking with
Mr. Wallace. See id. at 65 (Nov. 4, 2003 Transcript).
Of critical importance to the question of competence,
Dr. Oliver first testified that Mr. Wallace told him
that the three possible outcomes of a criminal] trial
were “guilty, not guilty, not guilty by reason of
insanity.” See id. at 50 (Oct. 30, 2003 Transcript).
But Dr. Oliver soon confessed that he himself had
written those outcomes in his notes before he ever
met Mr. Wallace. See id. at 66 (Nov. 3, 2003
Transcript).

4. Despite the overwhelming evidence that Mr.
Wallace was not competent to stand trial, the trial
judge found that the cognitive defects from which
Mr. Wallace suffers do not “preclude him from the
rational understanding of the charges’ and
proceedings against him.” Pet. App. 18a. The court

9
determined that “the evidence of malingering is far
more powerful than the evidence of significant
progressive deterioration.” Jd. at 24a. The court
thus declared Mr. Wallace competent to stand trial
in the case. /d. at 93a.

5. Notwithstanding the trial court’s views, Mr.
Wallace was in fact incapable of assisting his defense
team in mounting an effective defense. Left with
little choice, Mr. Wallace accepted a guilty plea.!
Throughout his plea proceeding, Mr. Wallace
exhibited behavior indicating his confusion about the
meaning of his choice. See CA App. 80-81 Wan. 5,
2004 Transcript). Though the trial court attempted
to lead him to the desired answers, Mr. Wallace
repeatedly expressed his desire to present an
insanity defense and to go to trial. Jd. at 81-82. He
could not understand the difference between a guilty
plea and going to trial, and he could not grasp the
key concept that a guilty plea meant the government
did not have to prove its case against him. Jd. at 84-
85. Despite Mr. Wallace’s confusion, the trial court
accepted his guilty plea. Jd. at 92. Apparently
concerned that the plea proceeding was inadequate,
the court took the unusual step of conducting an
additional hearing to bolster the record. See id. at
95-98 (Jan. 15, 2004 Transcript). Again, Mr. Wallace
demonstrated his confusion and inability to grasp
key concepts involved with the waiver of rights that
a guilty plea entails. See id. Nonetheless, the court
sentenced Mr. Wallace to thirty-five years in prison.

! Notably, Mr. Wallace suffered “a major seizure on December
18, 2003,” just “eighteen days before his plea hearing.” Pet.
App. 29a.

10
See Pet. App. 52a; see also CA App. 99-112 (Feb. 27,
2004 Transcript).

6. Mr. Wallace filed a timely notice of appeal,
arguing that the court erred in finding that he was
competent to stand tyal and to enter a guilty plea.
He then filed a motion to withdraw his guilty plea,
pursuant to District of Columbia Superior Court
Rule 32(e), and his appeal was stayed pending the
resolution of that motion. The trial court eventually
denied Mr. Wallace’s Rule 32(e) motion. Mr. Wallace
filed a timely appeal of the trial judge’s denial of the
Rule 32(e) motion, and the two appeals were
consolidated.

7. In the decision below, the District of Columbia
Court of Appeals denied Mr. Wallace all relief. First,
the Court of Appeals determined that Mr. Wallace

had waived his right to a direct appeal of the trial
court’s competency determination when he pled
guilty. The Court of Appeals acknowledged that
other courts had reached the contrary conclusion, but
it declined to follow those courts, concluding that
appeals of competency determinations are a “great
waste of judicial resources.” Pet. App. 6a.

The court determined that this Court’s decision in
Pate v. Robinson, 383 U.S. 375 (1966), merely
guaranteed that criminal defendants are “entitled to
procedural due process to determine whether [they]
are competent,” and did not create the right to
challenge the outcome of a competency
determination. Pet App. 5a n.5. And it found
unconvincing the argument that this Court’s
holdings in Blackledge v. Perry, 417 U.S. 21 (1974),
and Menna v. New York, 423 U.S. 61 (1975),

11
mandate that competency determinations cannot be
waived by a guilty plea because they go to the “very
power of the state ‘to halle] a defendant into court on
a charge.” Pet. App. 6a-7a n.7 (citing Menna, 423
U.S. at 62; Blackledge, 417 U.S. at 30-31). The court
suggested that while double jeopardy claims go to the
government’s ability to bring any indictment at all, a
competency determination involves “not the
government’s power to indict but the defendant’s
ability to assist in his defense at trial or to enter a
knowing and voluntary plea.” Jd. Thus, the court
refused to consider Mr. Wallace’s direct appeal of his
competency determination.

Instead, the court determined that Wallace and
others similarly situated must advance their claims
in a motion to withdraw the guilty plea. The District

of Columbia permits the withdrawal of a guilty plea
only “to correct manifest injustice.” Pet. App. 7a
(citing D.C. Super. Ct. Crim. R. 32(e)). This
“stringent” test, Pet. App. 7a-8a n.8, places an
onerous burden on the defendant; these motions will
only be granted where the plea is “fundamentally
flawed” such that there has been “a complete
miscarriage of justice.” Jd. at 8a n.9 (citation
omitted). And the trial court’s determinations in this
regard are reviewed only for abuse of discretion.
Even under this severely restricted scope of review,
the Court of Appeals acknowledged that Mr.
Wallace’s facts presented “a difficult case.” Pet. App.
la. Nevertheless, the Court of Appeals affirmed the
trial court’s denial of Mr. Wallace’s motion. See id.

12
REASONS FOR GRANTING THE WRIT

The state courts and the federal courts are
intractably divided over whether a defendant must
be allowed to appeal a competency determination
after he pleads guilty. The bar against trying an
incompetent defendant goes to the heart of the Due
Process Clause of the Fifth and Fourteenth
Amendments. Given the importance of that right
under our criminal justice system, such a conflict is
untenable. Furthermore, the decision below conflicts
with this Court’s clear precedent in Blackledge and
Menna that a guilty plea does not waive the right to
appeal constitutional claims that assert “the right
not to be haled into court at all,” Blackledge, 417
U.S. at 30 — situations in which the State may not
convict an individual “no matter how validly his
factual guilt is established,” Menna, 423 U.S. at 63
n.2. A criminal defendant’s right to appeal a
competency determination is such a right. The
District of Columbia Court of Appeals’ contrary view
— that a criminal defendant loses the right to appeal
a competency determination after he pleads guilty —
denies criminal defendants such as Mr. Wallace their
due process right to be tried only when competent.
Consequently, the District of Columbia’s decision
should be reviewed and reversed by this Court.

I. There Is A Deep And Acknowledged Split Over
The Question Presented.

The state and federal jurisdictions are divided
over whether a defendant may challenge a
competency determination after pleading guilty.
Several courts have held that a defendant may
challenge an unfavorable competency decision after

13
he pleads guilty. These courts have concluded that
while a plea of guilty constitutes a waiver of many
rights of appeal, the special nature of the competency
requirement demands that a defendant cannot forfeit
his right to contest the court’s determination, even if
he pleads guilty to a charge. Other courts have held
that a defendant may not directly appeal a
competency determination following a guilty plea.
Rather, a defendant’s sole avenue of relief is to file a
motion to withdraw the guilty plea and demonstrate
that a “manifest injustice” warrants withdrawal of
the plea, and then to seek appellate review under the
highly deferential standards that apply. The
difference in the two avenues of review is outcome
determinative in many instances, including this case.

1. Several state and federal jurisdictions have
held that a defendant does not waive his right under
the Due Process Clause of the Fifth and Fourteenth
Amendments to appeal directly a competency
determination after pleading guilty.

In People v. Armlin, 332 N.E.2d 870 (N.Y. 1975),
for example, the highest court in New York
determined that “the issue of competency to stand
trial may be raised on appeal,” even after the entry
of a guilty plea. /d. at 874. The New York Court of
Appeals reiterated this holding in People v. Seaberg,
541 N.E.2d 1022 (N.Y. 1989), confirming that a
defendant “may not waive the right to challenge ...
his competency to stand trial,” 7d. at 1025 (citing
Armlin, 332 N.E.2d at 874), even if the defendant
explicitly agreed to a waiver of this exact right of
appeal. See also People v. Frazier, 495 N.Y.S.2d 478,
479 (N.Y. App. Div. 1985) (“A defendant does not

14
waive the right to a competency hearing by pleading
guilty, and may raise for the first time on appeal the
issue of capacity to stand trial.”).

Likewise, as the D.C. Court of Appeals
acknowledged, the Vermont Supreme Court has held
that, it, too, would “treat appeals of competency
determinations as exceptions to the waiver rule.”
State v. Cleary, 824 A.2d 509, 512 (Vt. 2003). Thus,
in Vermont, defendants may seek direct appeal on
the issue of competency notwithstanding a guilty
plea.

Kentucky similarly has determined that a
defendant does not waive this right after he has pled
guilty. See Thompson v. Commonwealth, 56 S.W.3d
406, 408 (Ky. 2001). Recognizing that the “[c]riminal
prosecution of a defendant who is incompetent to
stand trial is a violation of due process of law under
the Fourteenth Amendment,” the Thompson court
found that even where “defense counsel conceded the
issue” of defendant’s competency during the plea
hearing, reviewing courts have the power of direct
review over a defendant’s appeal asserting his
incompetence. /d. (emphasis added): see also
Mitchell v. Commonwealth, No. 2000-CA-001236,
2003 WL 1339283, at *2-*3 (Ky. Ct. App. Feb. 21,
2003) (citing Thompson and _ concluding that
defendant did not waive his right to a competency
determination when he pled guilty).

‘These decisions are consistent with the approach
taken in numerous other States. In People v.
Parney, 253 N.W.2d 698 (Mich. Ct. App. 1977), for
example, a Michigan court asserted that “lilt is clear
that the United States Supreme Court, while

15

recognizing that certain rights of defendants may be
waived by a subsequent plea of guilty, does not say
that is true of all rights.” Jd. at 699 (quotation
marks omitted). Those unwaivable rights include
constitutional claims “which undercut...the state’s
authority or ability to proceed with the trial,” as
those “rights are similar to the jurisdictional
defenses in that their effect is that there should have
been no trial at all.” Jd The court found it
“unquestionablle]” that “the state is powerless to
undertake a criminal prosecution of an incompetent
defendant.” Jd. As a result, under the Due Process
Clause, a “defendant’s later guilty plea dloes] not
waive the alleged error arising from the prior
competency determination.” /d. at 699-700; see also
People v. White, 308 N.W.2d 128, 139 (Mich. 1981)
(noting that “where a claim is one that the state may
not prosecute regardless of defendant’s factual guilt,
a guilty plea does not waive the right to
subsequently raise that claim”).

Likewise, in State v. Wead, 609 N.W.2d 64 (Neb.
Ct. App. 2000), “bearling] in mind the sanctity of
constitutional protections and the need to guard
against constitutionally infirm convictions,” sd. at 68
(citing State v. Johnson, 551 N.W.2d 742, 758 (Neb.
Ct. App. 1996)), the court determined that “a
defendant’s guilty plea...does not preclude the
defendant from raising on direct appeal the issue of
competency to plead or stand trial.” /d The
Nebraska Supreme Court implicitly endorsed this
conclusion, as it considered in State v. Lassek,
without hesitation, a defendant’s competency appeal

L6
after he entered a_ plea of no contest. 723 N.W.2d
320, 324-26 (Neb. 2006).

Federal courts have determined, too, that a
defendant may appeal his competency,
notwithstanding his entry of a guilty plea. The
Southern District of New York remarked that the
notion that a defendant waives “his mental
competency claim upon entry of a guilty plea” is
“fundamentally flawed.” King v. Cunningham, 442
F. Supp. 2d 171, 185 (S.D.N.Y. 2006). The court
explained that “[clompetency’ and ‘knowing and
intelligent’ waiverls] are two separate inquiries, both
necessary components of a valid guilty plea.” Jd.
(citing Godinez v. Moran, 509 U.S. 389, 400 (1993)).
Consequently, appeals directly concerning a
competency determination must be distinct from
those considering a denial of a motion to withdraw a
guilty plea; the latter focuses on the “knowing and
intelligent” inquiry, while the former goes directly to
competency to stand trial.

2. The decision of the D.C. Court of Appeals here
conflicts directly with these decisions. As noted, the
Court of Appeals observed that, with the exception of
issues concerning “the exercise of jurisdiction by the
trial court and the legality of the sentence imposed,”
Pet. App. 5a (citation omitted), “virtually every
possible avenue of appeal is waived by a guilty plea,”
id. Recognizing that some courts have found
competency determinations to be exceptions to the
waiver rule, sd. at 6, the District of Columbia

17

“refused” to do so.2, Jd. Instead, the court held that
the defendant’s only avenue of redress is a “Rule
32(e) motion to withdraw” his guilty plea, which
“attack[s] the voluntary and intelligent nature of the
plea.’ Id. (emphasis added). As the court
acknowledged, relief under Rule 32(e) is severely
constrained. Such relief is available “only ‘to correct
manifest injustice,” id. at 7 (citing D.C. Super. Ct.
Crim. R. 32(e)), and the defendant “must establish
either that there was a fatal defect” in the plea
proceeding or that “justice demands withdrawal.”
Id. (internal citation omitted).

Although the D.C. Court of Appeals’ approach
conflicts with that adopted by most courts to have
expressly considered the issue, it is consistent with
the approach taken in some other jurisdictions. In

Tillman v. State, 570 S.W.2d 844 (Mo. Ct. App.
1978), for example, the Missouri Court of Appeals
considered a defendant’s claim — after he had pled
guilty -— “that the psychiatric reports were
insufficient in that the examining psychiatrist failed
to determine his mental deficiency,” thus placing the
court’s assessment of competency in doubt. Jd. at

2 The court specifically highlighted Vermont and Michigan as
jurisdictions that have found the issue of competency an
exception to the gencral waiver rule. See Pet. App. 6a & n.6.

3 District of Columbia Rule 32(e) reads: “A motion to withdraw
a plea of guilty or of nolo contendere may be made only before
sentence is imposed or imposition of sentence is suspended; but
to correct manifest injustice, the court after sentence may set
aside the judgment of conviction and permit the defendant to
withdraw the plea.” D.C. Super. Ct. Crim. R. 32(e).

18

846. Finding the claim “a mere trial error,” the court
held that the “movant’s plea of guilty waived any and
all alleged procedural infirmities antedating the
plea.” Jd. The court concluded that “[alny
contentions regarding the _ sufficiency of the
psychiatric examinations” should have been made
before the plea, or not at all. Jd.

The Florida Supreme Court has signaled that it,
too, believes that a guilty plea destroys a defendant’s
ability to appeal directly a vast majority of claims,
including a competency determination. In Robinson
v. State, 373 So. 2d 898 (Fla. 1979), the court
recognized that “[t]here is an exclusive and limited
class of issues which occur contemporaneously with
the entry of the plea that may be the proper subject
of an appeal.” /d. at 902 (emphasis added). Notably,
competency determinations were not included on the
court’s exclusive list. Rather, only claims asserting
subject matter jurisdiction, the illegality of a
sentence, the government's failure to adhere to a
plea agreement, and the voluntary and intelligent
character of the plea may form the basis of a direct
appeal after a guilty plea. Jd.

4 Jurisdictions on the other side of the debate show no sign of a
change of heart. The law in Michigan and New York, for
example, has been steady since the 1970s. See Parney, 253
N.W.2d at 699-700; Armlin, 332 N.E.2d at 874. And the
Southern District of New York has remarked that the notion
that one waives this right of appeal after a guilty plea is
“fundamentally flawed.” Cunningham, 442 F. Supp. 2d at 185.
There is little chance that either side will reconsider this
question absent action by this Court.

19
II. The Decision Below Conflicts With This Court’s
Decisions And Betrays The Promises Of The
Right To Due Process.

Certiorari is also warranted because the decision
below conflicts with this Court’s decisions, which
establish that the Due Process Clause requires that
defendants be permitted to appeal directly a
competency determination after a guilty plea.

1. In Pate v. Robinson, this Court held that “the
conviction of an accused person while he is legally
incompetent violates due process.” 383 U.S. 374, 378
(1966). And, to ensure that States guard this right,
“state procedures must be adequate to protect” it. /d.

While a defendant forfeits many important
constitutional rights when he pleads guilty, this
Court’s jurisprudence confirms that the right to be
tried only when competent is not among them. In
Blackledge v. Perry, this Court considered whether a
defendant waives the right to pursue a constitutional
double jeopardy claim after he pleads guilty. 417
U.S. 21, 29 (1974). The Court noted that when a
criminal defendant enters a guilty plea, he forfeits
the right to complain of “antecedent constitutional

Further, there is no recent trend towards a particular view.
Vermont, for example, determined in Cleary in 2003 that it will
“treat appeals of competency determinations as exceptions to
the waiver rule,” 824 A.2d at 512, while the District of
Columbia recently came to the opposite conclusion in the
present matter. Considering these recent, opposing decisions,
there is no benefit to further percolation, as this entrenched
and intractable split will not be settled without this Court’s
review.

20

violations” through direct appeal. Jd. at 30 (citing
Tollett v. Henderson, 411 U.S. 258 (1973)). The
forfeited rights, however, cannot go “to the very
power of the State to bring the defendant into court
to answer the charge brought against him.” /d. at
30. Thus, while a defendant gives up his right to
appeal a coerced confession, for example, see id., he
does not give up the guarantee of an appeal for the
“distinctive” rights barring “[tlhe very initiation of
the proceedings against him.” /d. at 30-31. The due
process prohibition against double jeopardy is one of
those rights, for “its practical result is to prevent a
trial from taking place at all, rather than to
prescribe procedural rules that govern the conduct of
a trial.” Jd. (quotation marks omitted).

This Court’s decision in Menna v. New York, 423
U.S. 61 (1975), in which the Court again held that a
guilty plea does not waive a double jeopardy claim, is
to the same effect. In Menna, this Court explained
that “a counseled plea of guilty is an admission of
factual guilt so reliable that, where voluntary and
intelligent, it quite validly removes the issue of
factual guilt from the case.” /d. at 63 n.2. As a
result, any claim on appeal that would go towards
the factual guilt of the defendant is waived by a
guilty plea. However, where “the claim is that the
State may not convict [the defendant] no matter how
validly his factual guilt is established,” a guilty plea
does not bar direct appeal. Jd. Thus, a guilty plea
does not waive a claim — lke a double jeopardy claim
— that contends that “the charge is one which the
State may not constitutionally prosecute.” Jd.

21

2. For the very reasons that defendants do not
waive their right to a double jeopardy claim after a
guilty plea, the Due Process Clause does not permit
such a waiver of claims concerning competency
determinations. Competency determinations, like
double jeopardy, go to the very power of the
government to force a defendant to answer to a
charge. When a defendant is deemed incompetent,
the determination “preventls] a trial from taking
place at all,” just as a valid double jeopardy claim
bars initiation of proceedings. Blackledge, 417 U.S.
at 30-31 (quotation marks omitted).5

In addition, whether a defendant is competent
to stand trial is entirely separate from the question
of his factual guilt. Even if there is incontrovertible
evidence that a defendant is guilty, the government
may not initiate proceedings against him if he is
incompetent. Thus, because a guilty plea “simply
renders irrelevant those constitutional violations not
logically inconsistent with the valid establishment of
factual guilt and which do not stand in the way of
conviction if factual guilt is validly established,”
Menna, 423 U.S. at 62-63 n.2, the mght to claim
incompetence to stand trial — like the right to assert
a double jeopardy violation — survives a guilty plea.
The D.C. Court of Appeals’ contrary conclusion
cannot be squared with this Court’s clear directives

5 See also United States v. Broadus, 450 F.2d 639, 641 (D.C.
Cir. 1971) (permitting a defendant who had entered a guilty
plea but later asserted that the statute under which he was
prosecuted had been found unconstitutional prior to his plea to
raise that contention on appeal because “the guilty plea should
not be allowed to accomplish what the Government could not
constitutionally accomplish”).

22
and with the guarantees of the Due Process Clause of
the Fifth and Fourteenth Amendments.®

Ill. The Conflict Is Recurring And Important.

There can be no question that this conflict
matters to criminal defendants like Wallace and to
the integrity of our judicial system at large.

1. This Court’s decision in Drope v. Missouri, 420
U.S. 162 (1975), makes clear that the prohibition on
trying an incompetent person is fundamental to an
adversarial system. /d. at 171-72. The trial of an
incompetent person is akin to the repugnance of a
trial in absentia; an incompetent person, for all
intents and purposes, is not present in the courtroom
in a legally meaningful sense, for he “is in reality
afforded no opportunity to defend himself.” Jd. at

171. He cannot understand the meaning of the
proceedings against him. He is unable to assist his
lawyer in the preparation of his defense — a disability
that inevitably taints the reliability of the outcome.
See Richard J. Bonnie, The Competence of Criminal
Defendants With Mental Retardation To Participate
In Their Own Defense, 81 J. Crim. L. & Criminology,

6 The D.C. court attempted to distinguish Menna and
Blackledge by claiming that those cases involved the
government's very power to indict, while the question presented
herein involved a different matter — “the defendant’s ability to
assist in his defense at trial or to enter a knowing and
voluntary plea.” See Pet. App. 7a n.7. But that description
trivializes and misconstrues the right at issue. As this Court
made clear in Pate, Due Process deprives the State of the power
to try one who is incompetent, and thus, for purposes of
determining whether a guilty plea waives the right to appeal,
competency claims and double jeopardy claims stand on the
same footing.

23
419, 427 (1990). And finally, he is unable to exercise
the judgment needed to make the decisions that this
Court has held must be made by the defendant
himself in a criminal proceeding. See e.g., Rock v.
Arkansas, 483 U.S. 44, 51-53 (1987) (whether to
testify); Breokhart v. Janis, 384 U.S. 1, 7-8 (1966)
(whether to plead guilty); Adams v. United States ex
rel. McCann, 317 U.S. 269, 275-77 (1942) (whether to
waive a jury trial). When a defendant’s competency
is in question, such that he cannot reliably be said to
possess the ability to play these roles within the
proceeding against him, our adversarial system fails.

2. Requiring a defendant to proceed through a
motion to withdraw a guilty plea, rather than a
direct appeal has a real and substantial effect on the
defendant’s ability to vindicate this fundamental
night.

The root of the defendant’s burden lies in the
decision forming the basis of the court’s review on
appeal; in the jurisdictions that permit direct appeal,
the initial competency determination — and not the
guilty plea — forms the basis of review. The initial
competency inquiry is governed by the standard
announced by this Court in Dusky v. United States,
362 U.S. 402 (1960). For a criminal defendant to be
competent to stand trial or plead guilty, he must
possess a “rational as well as a_ factual
understanding of the proceedings against him,” 7d. at
402, a “sufficient present ability to consult with his
lawyer with a _ reasonable degree of rational
understanding,” id., and the ability “to assist in
preparing his defense.” Drope, 420 U.S. at 171; see

24
competency standard for pleading guilty is the same
as the competency standard for standing trial). The
competency question is resolved by a_ simple
preponderance of the evidence. See Cooper v.
Oklahoma, 517 U.S. 348, 355 (1996) (holding that a
defendant may not be required to stand trial where
he has shown it is more likely than not that he is
incompetent to stand trial).

In contrast, in jurisdictions such as the District of
Columbia that preclude direct appeal, it is the
motion to withdraw a guilty plea that is under
review. The defendant’s burden in such a motion is
severe. In the District of Columbia, for example, “[a]
guilty plea may be withdrawn after sentencing only
if the defendant affirmatively establishes that the
trial court's acceptance of her plea was manifestly
unjust, and that the plea _ proceeding was
fundamentally flawed such that there was a
complete miscarriage of justice.” Johnson v. United
States, 631 A.2d 871, 874 (D.C. 1993) (emphasis
added). District of Columbia courts acknowledge
that this is a “high standard.” See Southall v. United
States, 716 A.2d 183, 188 (D.C. 1998); see also Pet.
App. 7a n.8 (describing the manifest injustice
standard as “stringent”).’

Thus, the defendant proceeds to appeal in each
instance with a very different sort of determination
under review. On direct appeal, the question is
whether the defendant was competent; on review of

7 Missouri and Florida, too, permit a defendant to withdraw his
guilty plea only upon a showing of “manifest injustice.” See,
e.g., Elam v. State, 210 S.W.3d 216, 217 & n.1 (2006) (citing Mo.
_:R. 29.07(d)); Williams v, State,.316 So. 2d 267,.273 (Fla. 1975). . --

25

denial of the Rule 32(e) motion, the question is
whether there was a manifest injustice. And because
the trial court considers a Rule 32(e) motion with a
strong presumption against granting it, individuals
such as Mr. Wallace face a double hurdle on appeal
that all but forecloses the possibility of prevailing,
even in cases such as Mr. Wallace’s in which there is
strong evidence of incompetence. In short, review of
a denial of a Rule 32(e) motion is not an adequate
replacement for direct review.

3. Not only is this right important, its denial has
potentially great reach. A vast majority of criminal
defendants choose to plead guilty, rather than face a
trial. In 2004, for example, 95% of felony convictions
in state courts resulted from a guilty plea. See U.S.
Dep't of Justice: Office of Justice Programs,
Sourcebook of Criminal Justice Statistics 2004 Table
5.46.2004, available at
http://www.albany.edu/sourcebook/pdf/t5462004. pdf.
It follows that a high number of defendants whose
competency is in question ultimately will face the
choice of whether to plead guilty, and statistics
support the conclusion that many will “choose” this
option. Thus, whether a defendant may directly
appeal his competency determination after a plea of
guilty is a question that has the potential to affect in
a serious way a large number of criminal defendants.

Finally, this issue critically affects not only the
defendants themselves, but also their attorneys. Ifa
lawyer believes her client to be incompetent,
regardless of the trial court’s determination on the
issue, she is presented with an impossible dilemma

-::‘In- jurisdictions. foHowing- the: District: ef -Columibia--*-:--°: +>

26

rule.8 An attorney may be tempted to advise her
client to accept a plea bargain where the attorney
doubts that the client will be able to adequately
assist in his defense at trial. Yet, the attorney must
do so knowing that a guilty plea will destroy the
defendant’s right to appeal the competency
determination — a particularly vexing situation when
the attorney believes the decision was erroneous.?

8 According to one study, “attorneys have some doubt about the
mental capacity of their clients in eight to fifteen percent of
felony cases.” See Richard J. Bonnie, et al., Decision-Making in
Criminal Defense: An Empirical Study of Insanity Pleas and
the Impact of Doubted Client Competence, 87 J. Crim. L. &
Criminology 48, 49-50 (1996). This statistic is even higher
when considering criminal proceedings in which the defendant’s
competency has been formally put into question: In a study of
the cases of 139 criminal defendants — 89% of whom were sent
for pre-trial evaluation for competence to stand trial — almost
three-quarters of the trial attorneys reported that they had
doubts about their clients’ ability to participate in his own
defense, regardless of the official determination of competency.
Id. at 52-53. Thus, the dilemma attorneys may face is a real,
substantiated problem.

® Particular concerns with potentially incompetent defendants
pleading guilty include the distinct possibility that admissions
made in the course of the plea may not be reliable and that the
defendant may not be capable of making “sufficiently
autonomous” decisions. Bonnie, Competence of Criminal
Defendants, 81 J. Crim. L. & Criminology at 436-37. A defense
lawyer's decision whether to recommend acceptance of a plea is
further complicated by the fact that, after a defendant is found
competent, his statements during interviews by the
government's mental health a may be. used against him as

-*-at trial. See; e.2.. ‘D.C -Cude’$ 24-531. 10. -

27

On the other hand, the attorney may advise her
chent to proceed to trial, with a defendant she
believes to be minimally competent, in large part to
preserve her client’s right to a direct appeal of the
competency determination. In this scenario, the
defendant’s right of appeal is secure. Yet, because
the client’s ability to assist in his defense is
impaired, the attorney will be severely limited in her
ability to conduct an adequate defense. The
possibility of an unfavorable result is_ real,
particularly when compared to the potentially more
lenient plea offer the defendant has foregone.

In short, a rule barring direct appeal of
competency determinations forces criminal attorneys
to walk a fine line that has immeasurable
implications for defendants’ rights — a situation this
Court should not condone.

IV. This Case Presents An Ideal Vehicle To Resolve
The Issue.

This case presents an ideal vehicle to resolve this
split and to correct the erroneous position held by the
court below. The issue was squarely presented below
and decided by the District of Columbia courts.
Further, the evidence of incompetence was strong,
indeed overwhelming. See e.g., Pet. App. la (noting
that this is a “difficult case”). Thus, Mr. Wallace’s
ability to appeal directly his competency
determination was critical, and, in fact, outcome
determinative. Had Mr. Wallace pled guilty in
Vermont or Michigan, for example, he would have
received a _ direct review of his competency
. determination. ..And in. that direct. review, the-court..

28
would have considered whether the vast evidence of
his mental deficits demonstrated that Mr. Wallace
was, in fact, incompetent to stand trial. See Godinez,
509 U.S. at 400-01; Drope, 420 U.S. at 171; Dusky,
362 U.S. at 402.

As overwhelming evidence demonstrates, Mr.
Wallace is incompetent under the Dusky standard
due to a lifetime of diabetic comas and epileptic
seizures that have damaged his brain to the point
where he cannot rationally or factually understand a
criminal proceeding against him, or assist in his own
defense in a meaningful way. His results on the
Wechsler Adult Intelligence Scale, 3d Edition, a test
of general intellectual functioning, are telling. The
test was administered under the supervision of Dr.
Sidney Binks, a government neuropsychologist with
no stake in the trial and no incentive to distort the
outcome in either way. See Pet. App. 112a°13a. Mr.
Wallace’s IQ, was only 55 — in the “severely impaired
range.” /d. This result means that Mr. Wallace does
not even rank in the first percentile of all
individuals.!° Jd. Sub-tests found that Mr. Wallace
is largely incapable of listening to a spoken word,
understanding what it means, remembering it, and
developing a meaningful response. See id. This
disability prevents Mr. Wallace from developing a
“rational as well as factual understanding of the

10 Numerous courts have concluded that defendants with scores
higher than Mr. Wallace’s are incompetent. See, e.g., State v.
Garfoot, 558 N.W.2d 626 (Wis. 1997) (defendant with IQ of 64
found incompetent to stand trial); State v. Augustine, 215 So.

-; , 2d-634; 637 (La. 1968) (defendant: had “actual brain damage”: 2--2-: 02050"

and an IQ of 57).

29
proceedings’ and from assisting counsel in a
meaningful manner. Dusky, 362 U.S. at 402.

In addition to Dr. Binks and two experts retained
by Mr. Wallace, no fewer than five neutral
government experts independently found Mr.
Wallace incompetent to stand trial. See CA App.
113-15 (Letter from Dr. Boss); id. at 116-119 (Letter
from Dr. Piquet); 7d. at 120-21 (Letter from Mr.
Henneberry and Dr. Montalbano); id. at 131-32
(Certificate from Dr. Hugonnet). Further, the
prosecution's own experts conceded that Mr. Wallace
suffers from cognitive impairments. Dr. Stephen
Lally, for example, performed a test on Mr. Wallace
that “showed he was performing in the moderate to
severely impaired range.” Pet. App. 16a. Another
conceded that Mr. Wallace’s debilitating conditions
could have caused brain damage and that Mr.
Wallace “has a dementia.” CA App. 41 (Oct. 30, 2003
Transcript).

The trial court, however, looked past this
substantial evidence and determined instead that
Mr. Wallace was malingering. See Pet. App. 92a-
93a. This determination flies in the face of the
analysis of trained medical professionals and reliable
scientific tests. Mr. Wallace’s EEG, for example,
confirmed that Mr. Wallace exhibits “markedly
abnormal brain wave activity, with slowing over the
frontal lobes,” CA App. 181 (Letter from Dr. Hyde),
and “[gleneralized slowing consistent with a diffuse
disorder or cerebral dysfunction or encephalopathy
related to a toxic metabolic, degenerative, infectious,

inflammatory or other system process.” /d. at 190 |

(Transfer Summary Update by Dr. Shine). As one’

30
expert explained, “there’s no way you can fake or
malinger an abnormal EEG.” Jd. at 7 (October 28,
2003 Transcript). Tests administered by the
government’s own witnesses confirmed the real
nature of Mr. Wallace’s significant impairment and

the conclusion that he was not malingering. See Pet.
App. 88a-89a.

Had the reviewing court been able to examine the
undisputed scientific evidence of Mr. Wallace’s brain
damage and severely impaired cognitive functioning
and the preponderance of expert opinion that Mr.
Wallace was incompetent on a direct appeal of the
competency determination itself, rather than a
review of the trial court’s denial of Mr. Wallace’s
motion to withdraw his guilty plea, it hkely would
have found Mr. Wallace incompetent. The law of the

District of Columbia, however, prevents this review
from ever occurring. This practice, contrary to the
law of several other jurisdictions and to this Court’s
precedent, betrays the promise of Due Process and
strips Mr. Wallace of his right to be tried only when
competent.

CONCLUSION

The petition for a writ of certiorari should be
granted.

31

Respectfully submitted,

DAVID A. HANDZO

J. ALEX WARD

LAN HEATH GERSHENGORN*
JENNER & BLOCK LLP

601 Thirteenth Street, N.W.
Washington, D.C. 20005
(202) 639-6000

December 12, 2007 * Counse/l of Record

APPENDIX A

District Columbia Court of Appeals
Eric R. WALLACE, Appellant,

Vv

UNITED STATES, Appellee.

Nos. 04-CF-29%. 05-CO-1328

Before FARRELL, RUIZ ars THOMPSON, Associate
Judges.

Thompson, Associate Judge:

After accepting a guilty plea from appellant Eric
R. Wallace, the trial court found Wallace guilty of
second-degree murder and sentenced him to thirty-
five years in prison, to be followed by five years of
supervised release. Wallace contends that the court
erred in finding that he was competent to stand trial
and to enter a guilty plea, and that the trial judge
abused her discretion in denying his motion to
withdraw his guilty plea. He argues in the
alternative that his sentence must be vacated
because it was based on uncorroborated and
unreliable information.

We agree with the trial judge that this is a
difficult case. However, finding no clear error or
abuse of discretion in the court's rulings, we affirm
Wallace's conviction and deny the requested relief.

2a
Background

During early 2002, doctors at St. Elizabeths
Hospital found appellant incompetent to stand trial
in three misdemeanor assault cases that were then
pending. The government thereafter petitioned to
have appellant civilly committed. Appellant opposed
the government’s request that he be held at St.
Elizabeths pending resolution of the commitment
petition, and he was released on October 10, 2002.
Later that same day, appellant encountered Claude
McCants at 1108 4th Street, N.E., stabbed McCants
in the neck, and drove away in McCants’ vehicle,
leaving McCants to bleed to death.

Relying on a court-ordered competency screening
completed in November 2002, the court found
appellant competent to stand trial for the murder of
McCants. The court also ordered a_ criminal
responsibility study, the results of which were
summarized in a June 2003 report that concluded
that “on or about October 10, 2002, ... [appellant] was
not suffering from a mental disease or defect that
substantially impaired his ability to appreciate the
wrongfulness of his conduct or his ability to conform
his conduct to the requirements of the law.”
Notwithstanding, on August 12, 2003, appellant filed
a motion asking the court to find him incompetent to
stand trial and a notice of intent to rely on the
insanity defense. In response, the court ordered the
Legal Services Division of the Forensic Services
Administration! to render an opinion as to the

' As explained by Dr. Lawrence Oliver, a clinical psychologist
employed by the Legal Services Division, the Division is “an

3a

“present mental competency of [appellant] to stand
trial.”

Dr. Oliver performed the competency
examination. In a letter dated September 29, 2003,
he reported that although appellant “claimed to have
no knowledge whatsoever of the judicial process and
the roles of various court officials,” his “presentation
today appeared to be completely volitional.” Dr.
Oliver concluded that appellant was malingering.?
After receiving his report, the court scheduled a
competency hearing, which was conducted over a
five-day period between October 28 and November 4,
2003. Having heard the testimony of five expert
witnesses and reviewed numerous written reports
about appellant’s mental status, the court ruled on
November 10, 2003 that appellant was competent to
stand trial.

When the parties were before the court again on
January 5, 2004 — the date set for commencement of
trial-defense counsel informed the court that
appellant “indicated again last night that he would

agency that was established by an order of Congress to assist
the court in issues of competency [and] criminal responsibility.”

? Malingering is “the willful, deliberate, and fraudulent feigning
or exaggeration of the symptoms of illness or injury, done for
the purpose of a consciously desired end.” DORLAMD’S
ILLUSTRATED MEDICAL DICTIONARY 771-72 (26t ed.
1981). The desired end can be “avoiding military duty, avoiding
work, obtaining financial compensation, evading criminal
prosecution, or obtaining drugs.” DIAGNOSTIC AND
STATISTICAL MANUAL OF MENTAL DISORDERS 739 (4t
ed. 2000).

4a

like to accept the Government’s plea offer.” After a
colloquy that resulted in the court’s finding that
appellant “understands the proceedings and is
competent to proceed,” the court accepted appellant’s
unconditional plea of guilty to one count of Second
Degree Murder While Armed. At a Frendak hearing
on January 15, 2004, the court also found that
appellant “understands the consequences of the
choice to waive the [insanity] defense” and that his
“waiver is voluntary and intelligent.” The court
sentenced appellant on February 27, 2004, and
appellant filed his notice of appeal on March 26,
2004. On August 19, 2004, he also moved to
withdraw his guilty plea, and his appeal was stayed
pending resolution of that motion. By order dated
October 27, 2005, the trial court denied the motion to

withdraw and appellant noted an appeal from the
denial order. We consolidated the two appeals.

Analysis
I.

The government urges that we must dismiss
appellant’s direct appeal. We agree that our case law
requires this result. We have said that “as a practical
matter virtually every possible avenue of appeal is
waived by a guilty plea,” Bettis v. United States, 325

* See Frendak v. United States, 408 A.2d 364 (D.C. 1979).
Through a Frendak inquiry, the trial court must assure itself
that the detendant understands the consequences of failing to
assert the insanity defense, is fully informed of the alternatives
available, and freely chooses to waive the insanity defense. See
Id. at 380.

5a

A.2d 190, 194 (D.C. 1974), and that “the only issues
that are appropriately raised in an appeal from a
conviction entered after a guilty plea are the exercise
of jurisdiction by the trial court and the legality of
the sentence imposed.” Carmichael v. United States,
479 A.2d 325, 326 n.1 (D.C. 1984) (citing Lorimer v.
United States, 425 A.2d 1306, 1308 (D.C. 1981) (per
curiam)). We have recognized that “a defendant who
is sentenced after pleading guilty may later attack
the voluntary and intelligent character of the plea,”
McClurkin v. United States, 472 A.2d 1348, 1352
(D.C. 1984), but have held that “the appropriate
method for challenging the voluntary and intelligent
character of a guilty plea is by a Rule 32(e) motion to
withdraw.”4 Lorimer, 425 A.2d at 1309.5

* Super. Ct. Crim. R. 32(e) provides that: A motion to withdraw a plea of
guilty or of nolo contendere may be made only before sentence ts
imposed or imposition of sentence is suspended; but to correct manifest
injustice, the Court after sentence may sct aside the judgment of
conviction and permit the defendant to withdraw the plea. /d.

5 Appellant argues that the preclusion of his direct appeal
amounts to a holding that he waived the issue of competence, a
result that he contends conflicts with the Supreme Court’s
admonition, in Pate v. Robinson, 383 U.S. 375, 86 S. Ct. 836, 15
L. Ed. 2d 815 (1966), that “it is contradictory to argue that a
defendant may be incompetent, and yet knowingly or
intelligently ‘waive’ his right to have the court determine his
[competencel.”/d. at 384. In Pate, however, the Supreme Court
was concerned with “the failure to observe procedures adequate
to protect a defendant’s right not to be tried or convicted while
incompetent to stand trial,” a deprivation of due process. Jn re
W.A.F., 573 A.2d 1264, 1266 (D.C. 1990). In other words, Pate
established that a defendant is entitled to procedural due
process to determine whether he is competent. Here, appellant
does not assert that procedural protections were lacking: we

6a

As appellant points out, some jurisdictions have
determined to “treat appeals of competency
determinations as an exception to the ... rule” that “a
voluntary guilty plea waives all nonjurisdictional
defects in the proceedings leading up to the plea.”
State v. Cleary, 175 Vt. 142, 824 A.2d 509, 512 (Vt.
2003).6 This court, by contrast, has “refusled] to
exercise our jurisdiction to hear a challenge to a
guilty plea” outside the context of an appeal from
denial of a motion to withdraw a guilty plea,
Lorimer, 425 A.2d at 1809 n.6, with the objective of
“reducling] the great waste of judicial resources
required to process frivolous attacks on guilty plea
convictions.” /d. (internal quotation and citation
omitted).7 Even were we free to depart from that

think he could not legitimately do so, as the court ordered two
competency assessments and conducted an_ extended
competency hearing, at which the trial judge repeatedly gave
counsel latitude to pursue questioning and took pains not to
“squeeze anybody out.” Appellant’s challenge is rather to the
outcome of the competency determination. Nothing in Pate
compels a holding that a defendant who has received the
benefit of such proceedings must be allowed to challenge his
competency again on direct appeal following a guilty plea.

© Other courts have reasoned that because a defendant’s mental
incompetence undercuts a state’s authority to proceed to trial, a
claim that the defendant was incompetent is a claimed
jurisdictional defect that is not waived by a guilty plea. See,
e.g. People v. Parney, 74 Mich. App. 173, 253 N.W.2d 698, 699-
700 (Mich. Ct. App. 1977) (“[Dlefendant’s later guilty plea did
not waive the alleged error arising from the prior competency
determination.”).

’ Appellant suggests that this court’s approach is inconsistent
with Menna v. New York, 423 U.S. 61, 96S. Ct. 241, 46 L. Ed.

7a

practice in this case, we would have no reason to do
so, because, as noted, appellant did in fact move in
the trial court for leave to withdraw his plea, and we
have before us his appeal from the trial court’s
decision denying that motion.

After the imposition of sentence, as in this case, a
court will allow the withdrawal of a guilty plea only
“to correct manifest injustice....” Super Ct. Crim. R.
32(e).8 To meet this burden, appellant must

2d 195 (1975). Menna was indicted for and pled guilty to
refusing to answer questions before a grand jury after he had
already been sentenced to a jail term for civil contempt for the
same refusal to testify. The Supreme Court reversed his
conviction, reasoning that where “the claim is that the State
may not convict petitioner no matter how validly his factual
guilt is established,” a “guilty plea ... does not bar the claim,” zd.
at 63, and admonishing that “[wlhere the State is precluded by
the [double jeopardy clause of the] United States Constitution
from haling a defendant into court on a charge, federal law
requires that a conviction on that charge be set aside even if the
conviction was entered pursuant to a counseled plea of guilty.”
Id. at 62. However, Menna involved the very power of the state
to “halle] a defendant into court on a charge.” Menna, 423 U.S.
at 62; see also Blackledge v. Perry, 417 U.S. 21, 94S. Ct. 2098,
40 L. Ed. 2d 628 (1974), a case where “the constitutional
infirmity in the proceedings lay in the State’s power to bring
any indictment at all” and the “very initiation of proceedings
against [the defendant] ... operated to deny him due process of
law.” Jd. at 30-31. By contrast, when a defendant’s compctency
is in issue, the issue is not the government’s power to indict but
the defendant’s ability to assist in his defense at trial or to
enter a knowing and voluntary plea. Menna and Blackledge do
not dictate that in this circumstance the defendant must be
able to bring a freestanding appeal of the competency
determination as though he had never pled guilty.

8 See Edwards v. United States, 766 A.2d 981, 988 n.10 (D.C.

8a

establish either that “there was a fatal defect in the
Rule 11 [plea] proceeding when the guilty plea was
taken,” or that “justice demands withdrawal under
the circumstances of the case.” Pierce v. United
States, 705 A.2d 1086, 1089 (D.C. 1997).2 We review
a trial court order denying a Rule 32(e) motion to
withdraw a guilty plea for abuse of discretion. See
Carmichael, 479 A.2d at 327. In lght of the
procedural history of this case, our review here will

2001) (noting that a post-sentencing motion to withdraw a
guilty plea is reviewed under the stringent “manifest injustice”
standard rather than under the more liberal] “if for any reason
the granting of the privilege seems fair and just” standard
applicable to a pre-sentencing motion to withdraw a plea);
Binion v. United States, 658 A.2d 187, 191 (D.C. 1995) (same).
We have held that “lilf it appears that a defendant [who has
filed a Rule 32(e) motion] ... did not knowingly plead, then
‘manifest injustice’ warranting withdrawal of the plea will
generally be found.” Carmichael, 479 A.2d at 327. We have also
recognized that “({a] defendant’s mental competency,” one of the
issues that appellant raises here, is “closely related to his
ability knowingly to enter a plea.” Jd.

9 Elsewhere we have said that both prongs of this test must be
met: “In order to withdraw a plea, the movant must not only
demonstrate that the plea was manifestly unjust, but must also
show that ‘the plea proceeding was fundamentally flawed such
that there was a complete miscarriage of justice.” Edwards, 766
A.2d at 987 (emphasis added) (quoting Williams v. United
States, 656 A.2d 288, 293 (D.C. 1995). We need not resolve
which articulation is the more accurate statement of the law
because, as explained infra, we conclude (with some difficulty)
that appellant has not met either prong of the test.

9a

largely entail application of a “clear error” standard,
as we now explain.!°

Appellant first attempts to meet the burden of
establishing that “justice demands withdrawal” of
his guilty plea by showing that he was mentally
incompetent at the time of the plea. See Willis v.
United States, 468 A.2d 1320, 1323 (D.C. 1983)
(“Having failed to show that he was mentally
incompetent, [appellant] has also failed to meet his
burden of proving manifest injustice.”). He attempts
to make that showing by challenging the validity of
the trial courts determination that he was
competent to stand trial. See Godinez v. Moran, 509
U.S. 389, 400-01, 113 S. Ct. 2680, 125 L. Ed. 2d 321
(1993) (holding that the competency required to
plead guilty is the same as the competency required
for standing trial). Accordingly, we are compelled to
consider whether the trial court’s November 10, 2003
competency determination is “supported by the
record,” Bennett v. United States, 400 A.2d 322, 325
(D.C. 1979), or whether the trial court clearly erred
when it determined on November 10, 2003 that
appellant was competent to stand trial!! (or when it

'° See Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 405, 110
S. Ct. 2447, 110 L. Ed. 2d 359 (1990) (noting that a court “would
necessarily abuse its discretion if it based its ruling on... a
clearly erroneous assessment of the evidence”).

Mt ay finding of competency will not be set aside upon review
unless it is clearly arbitrary or erroneous.” Bennett, 400 A.2d
at 325 (internal quotation marks and citation omitted). The
“clearly erroneous” standard applies because a trial court’s
competency determination is largely a factual determination,
see United States v. Izquierdo, 448 F.3d 1269, 1278 (11th Cir.

10a

relied on that conclusion in accepting Wallace’s
guilty plea on January 5, 2004, without any further
hearing on competency).

Appellant next argues that the Rule 11 plea
proceeding was defective because, regardless of his
mental competency, he did not actually understand
the significance of the proceeding and the rights he
was waiving. We therefore have the task of
determining whether the trial court clearly erred in
finding that appellant made his guilty plea
knowingly.'!2 See Johnson v. United States, 631 A.2d
871, 878-79 (D.C. 1993) (Farrell, J., concurring)
(noting that the clear error standard prescribed by
D.C. Code § 17-305(a) applies to review of the trial

2006) (“A [trial] court’s competency determination is primarily
factual in nature.”) and United States v. Villegas, 899 F.2d
1324, 1341 (2d Cir. 1990) (“A defendant’s competence to stand
trial is a question of fact ....”), which must be accorded “great
deference.” Bennett, 400 A.2d at 325.

12 As appellant notes, “(t]he focus of a competency inquiry is the
defendant’s mental capacity [e.,] whether he has the ability to
understand the proceedings.” Godinez, 509 U.S. at 401 n.12
(emphasis removed). The focus of a Rule 11 “ ‘knowing and
voluntary’ inquiry, by contrast, is to determine whether the
defendant actually does understand...."/d. (emphasis in
original): see also id. at 400-01 (“In addition to determining that
a defendant who seeks to plead guilty ... is competent, a trial
court must satisfy itself that the waiver of his constitutional
rights is knowing and voluntary.... In this sense there is a
‘heightened’ standard for pleading guilty ..., but it is not a
heightened standard of competence.’(internal citations and
emphasis omitted)).

lla

judge’s findings based on a defendant’s statements
during a plea inquiry).

II.

As already noted, appellant contends that “justice
demands withdrawal” of his guilty plea because of
his lack of mental competency. He argues that the
evidence presented at his competency hearing-his
diagnoses of cognitive impairment and “dementia
due to seizure disorder and _ insulin-dependent
diabetes,” and the fact that “six different doctors
independently determined that [he] was not
competent to stand trial” — either taken alone or
viewed in conjunction with post-competency-hearing
evidence presented with his motion to withdraw,
compels a conclusion that he was incompetent to
stand trial and to plead. We consider these
arguments in section II .A. infra.

Appellant also asserts that he “was obviously
confused throughout the plea proceedings” and that
the trial judge abused her discretion, both in
accepting his guilty plea and in denying his motion
to withdraw the plea, in the face of his repeated
assertions about self-defense, lack of excessive force,
and the insanity defense. We address. these
arguments in section II:B. infra.

A. Appellant’s Competence to Stand Trial or
Plead Guilty

“Constitutional due process requires that a
criminal defendant be mentally competent for a trial
to proceed.” Higgenbottom v. United States, 923 A.2d
891, 897 (D.C. 2007) (citation omitted). In a

12a

competency proceeding, the relevant inquiry is
whether a defendant has a rational and factual
understanding of the proceedings against him and
whether he can consult with his lawyer and assist in
preparing his defense. See id., see also Dusky v.
United States, 362 U.S. 402, 80 S. Ct. 788, 4 L. Ed.
2d 824 (1960) (per curiam) (establishing the
requirements of rational and factual understanding
and competent consultation with a lawyer) and
Drope v. Missouri, 420 U.S. 162, 171, 95 S. Ct. 896,
43 L. Ed. 2d 103 (1975) (requiring a defendant to be
able to “assist in preparing his defense”).

a. Evidence Presented at the
Competency Hearing

At the competency hearing in this case, appellant
presented evidence that he had long suffered from
Type I diabetes, causing him to experience erratic
and abnormal swings in his blood sugar, and that he
also had a long history of epileptic seizures. Dr.
Thomas Hyde, a board-certified neurologist who
examined and tested appellant on April 23, 2002,
and October 6, 2003, testified that “due to poorly
controlled seizures and repeated hypoglycemic
insults to the brain over the years,” appellant was in
a “cognitively impaired state” and had “significant
impairment in neurological function, especially in
domains of attention and memory” that “would
impair his ability to understand the proceedings that
he would be involved with, and to participate and
work with his counsel in an effective manner” and
that “render him incompetent from the medicallegal
standpoint.” Dr. Hyde also testified that appellant's

13a

“Full Scale IQ was found to be 55” and that “people
who are below 60 are really quite significantly
impaired.”

Dr. David Pickar, a _ psychiatrist,!3 met with
appellant on three different occasions-January,
April, and September of 2003. He testified that
appellant demonstrated perseveration, a symptom of
frontal lobe dysfunction. Dr. Pickar also testified that
during his September 2003 evaluation of appellant,
he explored at some length appellant’s
understanding of the legal process. He found
appellant “unable to understand the fundamental
nature of the defense-prosecution, defendant
relationship” and ‘luJnable to understand
relationship with defense attorney.” Dr. Pickar did
not think that appellant “got [i.e., comprehended] the
idea of pleading guilty.” Dr. Pickar concluded that
appellant “does not have sufficient understanding of
the legal process, or the ability to work appropriately
with counsel in the context of a central nervous
system disorder that involves dementia, probably
secondary to epilepsy; and that he is not competent
to stand trial, and that the deficits that are germane
to this conclusion are not related to malingering.”!4

'* Dr. Pickar also spoke with appellant’s family, interviewed
doctors that treated appellant at St. Elizabeths, and reviewed
appellant’s medical records.

'4 The court also had before it the opinions of doctors who had
performed the criminal responsibility examination during the
spring of 2003 and doctors who had examined appellant during
the time that he was evaluated at St. Elizabeths Hospital for
the purpose of determining whether he was competent to stand

14a

The government’s experts did not dispute that
appellant had some degree of cognitive impairment.
Dr. Raymond Patterson,!®> a forensic psychiatrist who

trial in his misdemeanor cases. On May 5, 2003, Dr. Sidney
Binks, a neuropsychologist, reported that appellant’s test scores
“suggested significantly impaired cognitive functioning
comparable to those of a group of elderly individuals with
dementia” and concluded that appellant “did not malinger.” On
January 2, 2002, psychologist Dr. Anita Boss stated that
appellant was “unable to participate in court proceedings at
this time” and that “it is unclear if his condition will
significantly improve and a minimum of 30 to 45 days is
recommended before re-evaluation.” On January 30, 2002, Dr.
Michele Piquet stated that appellant was “not competent to
stand trial because cognitive factors substantially impair his
capacity to have a factual and rational understanding of the
proceedings against him, and to properly assist counsel with
preparation of his defense.” In a letter dated March 27, 2002,
the Forensic Inpatient Services Division (“FISD”) of the District
of Columbia Department of Mental Health reported that it was
“too early in treatment program to determine the likelihood of
Mr. Wallace attaining competency in the foreseeable future.”
On May 24, 2002, FISD reported that it was “unlikely that Mr.
Wallace will attain competency in the foreseeable future.” On
June 26, 2002, psychologist Dr. Mitchell Hugonnet stated that
appellant’s “judgment was severely impaired,” that he was
diagnosed with dementia due to diabetes and epilepsy, and that
he was “unable to manage the basic concepts associated with
competency to stand trial.”

'’ Dr. Patterson examined appellant only once. He also spoke
with two of appellant's treating physicians and_ several
individuals that supervised appellant at both the mental
hospital and the jail, and reviewed “quite a lot of records” from
“every expert [that] has testified....”. In addition, he observed
that “being here in the courtroom and hearing [appellant’s]
capacity to render information when he chooses to [was] also
quite helpful” to him in evaluating appellant's competence.

15a

had completed several hundred competency
examinations, testified that he “had no conflict” with
tests showing that appellant had some degree of
neurological damage and acknowledged that “there
might be some mild dementia,” but stated that this
“does not mean that [appellant] does not have the
ability ... to exaggerate as much as he might think he
should to convince people that he doesn’t know
what’s going on.” Dr. Patterson opined that appellant
“certainly was malingering” and “certainly was ...
exaggerating symptoms ... when they said he had an
IQ of 55, because I simply don’t believe he has an IQ
of 55.” Dr. Patterson cited specific examples of
appellant's malingering: “choosing how [hel
respond[s] based on who [he’s] talking to”;
appellant’s “ridiculous” response to a question about
the colors of the American flag, a question that even
mentally retarded individuals and people with
serious mental illness “don’t miss”; appellant’s claim
to hear voices but his ability to concentrate and his
lack of distraction, which are inconsistent with that
affliction; and his exhibiting “high-level” planned
behavior, such as injecting himself with insulin to
get medical attention in the emergency room faster
than other people.

Dr. Patterson further testified that appellant’s
behaviors inconsistent with an IQ level of 55
included acting as a “predator” while at St.
Elizabeths but not while in jail, where appellant
appeared to be “normal,” lke “any other inmate who
is not receiving mental health services.” Dr.
Patterson agreed with a statement in a discharge
summary, attributed to Dr. William Richie, one of

16a

appellant’s treating psychiatrists at St. Ehzabeths,
that appellant was “capable of dissimulating,
fabricating, prevaricating and malingering cognitive
disabilities in excess of his documented deficits.”
Noting that the issue was “whether or not [appellant]
understands, rationally and _ factually these
proceedings, the charges against him, the
consequences; and can he, does he have the ability to
assist his attorney,” Dr. Patterson stated that “In my
view, he has both of those.” Dr. Patterson thought
that appellant’s case was “not a close call at all,”
explaining that “when [appellant] adheres to his
treatment regime, seems to do pretty well. When he
doesn’t, he runs into problems. The latter, in my
view, are very much and directly related to his
attempts to not have this matter go forward, and in

part because he has been in a position where
precisely that has happened before.”

Dr. Steven Lally, a _ clinical and _ forensic
psychologist who had previously conducted between
200 and 250 competency evaluations,!® spent 7 1/2 to
8 hours with appellant at the D .C. Jail on October
24, 2003. Dr. Lally administered a
neuropsychological screening test that showed that
appellant was “performing in the moderate to
severely impaired _ range.” Dr. Lally also
administered a test for memory malingering that
“did not disclose malingering.” Dr. Lally explained
that the tests showed that appellant was “answering

'° Dr. Lally alsc spoke with Dr. Hugonnet of St. Elizabeths and
with appellant’s long-time girlfriend, and reviewed records from
a number of sources.

17a

in a... sort of careless random fashion,” the reason
for which the test cannot explain. Dr. Lally
concluded that one “should not put a lot of credibility
[sic] in terms of [appellant’s} performance in
psychological tests.” With respect to one of the tests,
Dr. Lally also explained that “if [the] test does not
indicate malingering, it does not mean that the
individual is not malingering. In other words, it’s a
test that’s very effective when it does indicate
malingering. But studies have shown that a number
of malingerers ... don’t necessarily get caught with
the [test].”

On the basis of an interview with appellant, Dr.
Lally concluded that appellant’s behavior was
inconsistent with the degree of impairment that
appellant claimed, but was. consistent with
malingering. Dr. Lally noted that when he would
stop taking notes during a meeting with appellant,
appellant’s speech became more spontaneous and his
answers more accurate. Further, appellant mixed
symptoms of various disorders and failed to
remember details of the crime unless the detail was
exculpatory. Dr. Lally testified that although
appellant reported “hearing voices,” his symptoms
were inconsistent with that condition. The symptoms
that appellant reported were also inconsistent from
one doctor’s visit to the next, which Dr. Lally
explained was a sign of malingering because
malingerers “don’t always know how to respond.” Dr.
Lally concluded that appellant was malingering
“both psychotic symptoms and also some degree of
cognitive impairment.”

18a

Dr. Oliver testified that he found “inexplicable
inconsistencies” between the November 2002 and
September 2003 interviews he conducted with
appellant.1? During both interviews, appellant
exhibited a good memory, was able to recite
telephone and social security numbers, and could
give background details. During the September 2003
interview, however, in contrast with the November
2002 interview, appellant had no knowledge about
the charges and legal issues discussed. Unable to
explain the differences in appellant’s behavior, Dr.
Oliver concluded that appellant was intentionally
producing symptoms.

b. The Trial Court’s Competency
Ruling

Upon this evidence the trial court found that
there was “no doubt that Mr. Wallace suffers some
cognitive deficits,” but that it was “evident from the
record” that these impairments do not “preclude him
from the rational understanding of the charges and
proceedings against him,” “nor do they preclude him
from consulting with his lawyers.” The court
concluded that appellant is “malingering and
remains competent to stand trial in this case.”

'’ Dr. Oliver had performed “somewhere around 4000”
competency evaluations, and had found in more than half the
cases that the person evaluated was incompetent. By contrast,
Dr. Hyde testified that he had previously been retained on only
five or six occasions to examine the issue of competency, always
by the defense, and had testified on competency on two or three
occasions.

19a

Appellant accuses the trial court of “lookling] past
the mountain of scientific evidence showing the
[appellant’s] incompetence” and “seizling] upon a red
herring: the prosecution’s charges of ‘malingering’....”
We are satisfied, however, that the trial judge did
not ignore or overlook appellant’s evidence of
impairment.

First, acknowledging the conflicting evidence, the
court told the parties that “this is a difficult case.”
Second, explaining its finding that appellant was
malingering, the trial court specifically relied on the
testimony that, on one of the tests for malingering,
appellant gave “careless responses which invalidated
the test results,” and that even when an individual
“passes” a malingering test “it does not mean you do
not have malingering. It just means they didn’t

choose to do it in a way that is detected in [the] test.”
Appellant emphasizes the evidence that he “passed”
two tests designed to detect malingering and asserts
that the court’s finding that he was malingering
cannot be squared with the evidence, but the trial
judge’s explanation identified evidence that, we
agree, supports her conclusion.

Third, the trial court’s finding that appellant was
competent to stand trial is not plainly contrary to the
neurological evidence of appellant’s impairment. The
defense and prosecution experts agreed that
cognitive impairment does not necessarily mean
incompetence: Dr. Hyde acknowledged that an
individual with organic brain damage can be
competent, and Dr. Patterson testified that cognitive
impairment and brain damage do not necessarily

20a

render someone incompetent to stand trial and that
a person’s having dementia does not mean that he is
incompetent. Further, there was no consensus, even
among defense experts, that appellant suffered from
psychosis or any other mental illness. 18

18 Appellant exhibited “psychotic symptomatology” during Dr.
Hyde’s visit with him during October 2003, but Dr. Hyde had
“not formed a final opinion about” whether appellant had a
mental illness. Dr. Pickar believed that appellant experienced
auditory hallucinations, but was uncertain as to whether
appellant was suffering from psychosis. Dr. Oliver opined that
appellant was not mentally ill.

We note that in a December 16, 2003 report, the District of
Columbia Commission on Mental Health referred to appellant’s
“mental illness” but appears to have utilized that term
synonymously with the term “dementia.” At one point in its
report, prepared after the Commission heard testimony from St.
Elizabeths staff psychiatrist Dr. William Richie, the
Commission stated that appellant “has difficulty attending to
daily needs without supervision due to his [mild to moderate]
dementia.” At another point in its report, the Commission
summarized Dr. Richie’s views that “one factor that would
cause [appellant] to injury [sic] himself or others is his mental
illness,” which “impairs his ability to care for himself, including
his medical care. The cognitive deficits caused by dementia will
more likely cause respondent to engage in activities that will
injure others.” Elsewhere, dementia has been distinguished
from mental illness. See, e.g, 70 Fed. Reg. 4194, 4216 (2005)
(Department of Health and Human Services Medicare program
rulemaking notice distinguishing “mental illness” from
“cognitive impairments such as Alzheimer’s disease or other
dementias”); 62 Fed. Reg. 67174, 67201 (1997) (Department of
Health and Human Services rulemaking notice stating that “a
person with a primary diagnosis of dementia would not be
considered to have mental illness”).

2la

Appellant suggests that the trial court should
have given more weight to the competency
determinations by doctors who saw appellant over
the course of his several-month-long inpatient stays
at St. Elizabeths than to the views of the doctors who
saw appellant on fewer, more abbreviated occasions.
However, in exercising her discretion, the trial judge
was entitled to credit the view of the government’s
experts that those doctors simply “got it wrong.”!9 Cf

19 It is clear from the record that the trial judge considered
whether to give special weight to the views of St. Elizabeths
doctors who saw appellant regularly while he was housed there.
During the competency hearing, the following exchange took
place between the court and Dr. Patterson:

The Court: In reviewing what records I have been able to see,
there’s a big hole here in the background. I’ve got a year where
[appellant] is at the hospital where their-a sophisticated staff is
working with him, and they are concluding that not only is he
incompetent, but he’s not likely to regain competence.

The Witness: Yes.

The Court: And then bingo, he comes in, in October, like one
day after he’s released under that finding, and he’s suddenly
competent.

The Witness: Yes.

The Court: How do you evaluate that?

The Witness: I think, frankly, that they got it wrong; that the
presentation for Mr. Wallace and the blurring of the lines and
that’s, in part, what makes it difficult, because Mr. Wallace
does have diabetes, and Mr. Wallace does, it appears, to have
had a seizure disorder for some time.

So you take those, and if you are not real careful, you can make
a jump, a leap, in my view, that he’s got such significant brain
damage or impairment that he’s not competent, and won't be
competent. I frankly don’t understand it.

I think it was a mistake. And I think that that mistake is borne
out by his level of functioning that’s seen not just in October
and November, but also scen when he’s interviewed by some of

22a

United States v. Chischilly, 30 F.3d 1144, 1150 (9th
Cir. 1994) (“[tlo the extent that [the trial judge], from
his courtroom observations, assigned more weight to
the Government’s expert than to the contrary, ... he
was acting within his discretion to do so as a part of
his fact-finding and credibility-weighing functions.”).
In some instances, this court accords greater weight
to the opinions and diagnoses of a treating physician
than to the opinions of non-treating physicians who
have been engaged to provide medical evaluations.
See, e.g., Washington Metro. Area Transit Auth. v.
District of Columbia Dep't of Employment Servs.,
926 A.2d 140, 146 (D.C. 2007) (noting that the law
affords the diagnosis of a treating physician more
weight than the conflicting opinion of a non-treating
physician in a worker's compensation
determination); Aralick v. District of Columbia Dep't
of Employment Servs., 842 A.2d 705, 711 (D.C. 2004)
(same, citing case authority). However, with respect
to competency determinations in criminal cases,
neither this court nor others have required deference
to treating physicians or to doctors who saw a
defendant on multiple occasions as an inpatient.?°

the experts in this matter, and the information that he
provides.

?° As the United States Court of Appeals for the Fourth Circuit
has explained:

[A] district judge’s discretion in these matters properly includes
the power to discount [the testimony of the defendant's personal
physician]. He might find a treating physician’s testimony
unpersuasive because he lacks confidence in the physician’s
qualifications or abilities. The trial judge must also weigh,
implicitly or explicitly, a treating physician’s candor and

23a

Moreover, even if the trial court had given special
weight to the views of appellant’s treating
physicians, no different result would have been
required. None of the experts who testified at the
competency hearing were appellant’s “treating
physicians.” But Dr. William Richie was one of
appellant’s treating psychiatrists at St. Elizabeths,
and the St. Elizabeths discharge summary discussed
at the competency hearing attributed to Dr. Richie
the statement that appellant “has [a] selective
memory and is capable of dissimulating, fabricating,
prevaricating and malingering cognitive disabilities
in excess of his documented deficits.”2! And although
other doctors who saw appellant on an inpatient
basis at St. Elizabeths in 2002 and 2003 opined that
he was unable to participate in court proceedings or
to assist counsel with his defense, see supra note 14,
experts appear to agree that an individual who is
mentally incompetent to stand trial at one point in
time may be competent to stand trial at a later time.
For example, while Dr. Boss found appellant
incompetent to participate in court proceedings in
January 2002, she also commented that it “may be

objectivity.... [Rlules developed by appellate courts in limiting
the discretion of administrative law judges and administrative
agencies-rules motivated in part by concerns about agency
independence and bias-have little or no relevance to the
exercise of discretion by a district court.

United States v. Brown, 821 F.2d 986, 990 (4th Cir. 1987)
(internal citation omitted).

*! In addition, Dr. Lally drew his conclusion that appellant was
malingering, in part, from his conversations with Dr. Richie.

24a

useful for Mr. Wallace if defense counsel can spend
even more time with him to go over the details of his
cases and legal strategy. Multiple repetitions, in
addition to frequent discussion, may help [him] recall
what he needs to know in order to better inform his
choices and ability to participate.” See also
Carmichael, 479 A.2d at 327 (noting that a doctor at
St. Elizabeths had confirmed that Carmichael was
incompetent to stand trial, “but three months later
this same doctor reported that the subject’s mental
condition had improved enough so that he was fit to
stand trial”). Notably, the record indicates that
appellant did receive “competency training” while at
St. Elizabeths. All of this is to say that even if the
court had been required to accord special significance
to the views of the St. Elizabeths doctors that

appellant was incompetent to stand trial at the time
the doctors expressed those views, deference to those
doctors’ views did not require the court to find that
appellant was incompetent to stand trial in
November 2008 or to enter a plea in January 2004.

The trial court weighed the evidence and found
that “while ... there is dementia and impairment,”
the “evidence of malingering is far more powerful
than the evidence of significant progressive
deterioration.” In essence, appellant’s disagreement
is with the weight the trial judge accorded to the
conflicting expert opinions about competency.

To disturb the trial court’s findings, however, this
court would have to re-weigh the evidence. That we
may not do.

25a

Our case law is clear that when there is a
plausible explanation presented by two competing
groups of experts, the decision is one for the fact
finder. See Jackson v. Condor Mgmt. Group, Inc., 587
A.2d 222, 225 (D.C. 1991) (“When a case turns on
controverted facts and the credibility of witnesses, as
this one does, it is peculiarly one for the [finder of
fact]. The fact that some of the witnesses may be
experts does not alter this rule.” Gnternal citation
omitted)). This principle applies with respect to
expert medical testimony just as it does to other
expert evidence. See Washington Metro. Area
Transit Auth. v. District of Columbia Dept of
Employment Servs., 770 A.2d 965, 970 (D.C. 2001)
(“In evaluating conflicting medical testimony, as in
weighing evidence generally, the hearing examiner
has wide latitude. The examiner is entitled to draw
reasonable inferences from the evidence presented,
and her decisions are especially weighty when they
involve credibility determinations.”(internal
quotation marks and citation omitted)). And it
applies with respect to competency hearings just as
it does to other proceedings. See, eg., Ray v.
Duckworth, 881 F.2d 512, 516 (7th Cir. 1989)
(holding that “[blecause of the potential for divergent
and often conflicting opinions on the issue of the
defendant’s competency, we must be careful to give
due regard to the trial court’s superior ability to
draw the appropriate inferences from its observation
of the defendant and expert witnesses, as well as the
examination reports before it,” and noting that the
trial court was making a “credibility determination”

26a

when it chose to believe the expert opining that
appellant was malingering).

In this case, the trial court was presented with
“two permissible views of the evidence as to
competency....” Villegas, 899 F.2d at 1341. “[Tl]he
court’s choice between them cannot be deemed
clearly erroneous.” /d.; see also Izquierdo, 448 F.3d
at 1278 (same). We can find no clear error in the
court’s November 2003 determination that appellant
was competent to stand trial. Accordingly, appellant
has not met the “substantial” burden he must meet
to show that withdrawal of his plea was necessary to
correct a manifest injustice. Williams v. United
States, 595 A.2d 1003, 1006 (D.C. 1991); see also
Higgenbottom, 923 A.2d at 897 (“We review a court’s
competency determination ... for abuse of discretion,
the exercise of which we will not lightly
disturb.”(internal quotation marks and citation
omitted)).

c. The Court’s Denial of the Motion to
Withdraw in the Face of Post-
Competency Hearing Evidence

Just before the plea proceedings commenced on
January 5, 2004, the court was advised that
appellant had been hospitalized for twelve days
during December 2003. The court inquired of defense
counsel whether he had “seen any significant
difference in [appellant’s] functioning since this
latest episode in the hospital.” Although defense

27a

counsel responded that he had not,?2 the information
about appellant’s post-competency-hearing
hospitalization arguably raised anew the issue of
appellant's competency. This court has held that
“where the issue of a defendant’s mental competence
[has] been raised on the record, the trial court must
conduct a specialized hearing to determine the
competence of a defendant who seeks to plead
guilty.” Edwards, 766 A.2d at 988 (quoting Hunter v.
United States, 548 A.2d 806 (D.C. 1988)). The trial
judge did not conduct a second competency hearing,
and so we must address the issue of how this bears
on appellant’s motion to withdraw his guilty plea.
The issue is an important one because the record
reveals that appellant suffered a major seizure on
December 18, 2003, and _ while hospitalized
underwent an EEG that showed what Dr. Hyde, ina

letter dated January 8, 2004, called “markedly
abnormal brain activity.”23 And, in her November 10,

*? Specifically, defense counsel responded, “No, Your Honor. My
only visit with him after this episode was last night. As the
Court knows, my view is that there are significant problems
here. I can’t say that I think they’re more significant now that
they have been. I’m not an expert on those things.”

Similarly, during the proceedings on January 15, 2004,
appellant’s counsel informed the court that there was “no
change in [appellant’s] condition since we were here on the
competency decision.” The trial court referred to this
information in denying the moticn to withdraw.

** Dr. Hyde’s January 8, 2004 letter, which was initially
presented to the court to support appellant’s sentencing
recommendation, was resubmitted as an exhibit to the motion
to withdraw the guilty plea. In the letter, Dr. Hyde noted that

28a

2003 competency ruling, the trial judge had
specifically noted Dr. Hyde’s testimony that “seizures
can result in loss of consciousness and confusion in
post seizure, as well as an impairment of cognitive
function.”

We addressed a similar situation in Edwards,
where the court conducted a plea proceeding and
accepted Edwards’ guilty plea while “unaware of his
diminished mental capacity,” which was later
documented in an_ evaluation by a_ clinical
psychologist, Dr. Levin. Dr. Levin's evaluation
described the substantial brain damage and marked
changes in cognitive functioning that Edwards had
sustained after a beating by police years earlier. See
766 A.2d at 984, 987. We noted that even though the
trial court had been unaware of this history during
the plea proceeding, the trial judge’s denial of
Edwards’ post-sentencing motion to withdraw his
plea “was informed by Dr. Levin’s evaluation.” /d. at
988.We rejected Edwards’ claim that the court had
erred in denying his motion to withdraw, noting that
the denial was “based primarily on [the trial judge’s]
personal observations of and conversations with
Edwards, factors to which we accord great

appellant “was emergently transported from jail to Greater
Southeast Community Hospital on December .8, 2003. He was
admitted with diabetic ketoacidosis, a severe metabolic
condition produced by out of control diabetes. In addition, he
suffered a major scizure in the emergency room (due in part to
a subtherapeutic blood level of Dilantin, his anticonvulsant
medication). He was admitted to the hospital, where he
remained for twelve days while his multiple metabolic problems
were corrected.”

29a

deference.” Jd. We also noted that Dr. Levin “never
opined that Edwards was incompetent to enter a
plea,” id., and that the trial judge had clearly
considered Dr. Levin’s report but rejected it as
“unpersuasive on the issue of Edwards’ competence
at the time of the plea.” /d. at 988 n.10.

We reason similarly here. It appears that Judge
Broderick was not aware of the details of appellant’s
December 2003 hospitalization and EEG at the time
of the plea proceeding, but information about both
did inform her denial of Wallace’s motion to
withdraw his guilty plea. Judge Broderick noted that
appellants EEG taken on December 24, 2003
“evidenced permanent and _ irreversible’ brain
damage,” that appellant had “a major seizure on
December 18, 2003, eighteen days before his plea
hearing,” and that Dr. Hyde “found that [appellant]
became confused for several days after ‘a bout of
severe seizures.” However, like the trial judge in
Edwards, Judge Broderick found the _ evidence
relating to the December 2003 episode unpersuasive
on the issue of competence, stating that “[nlo
evidence was presented that there was a change in
the Defendant’s [competency] since the time of the
competency findings.” We find no clear error in the
court’s assessment. Even if we discount the lay
opinions of defense counsel that there was no change
in Wallace’s functioning between the time of the
competency hearing in November 2003 and January
2004, the record does not compel a conclusion that
appellant's competency had _ diminished from
November 2003 to January 2004.

30a

As noted, Dr. Hyde’s letter of January 8, 2004,
interpreting appellant’s December 24, 2003 EEG
stated that the EEG showed “markedly abnormal
brain wave activity, with slowing over the frontal
lobes,” consistent with “permanent and irreversible
frontal lobe damage.” But Dr. Hyde did not suggest
in his letter that the new EEG showed that appellant
was incompetent at the time of his plea.?4 Indeed, Dr.
Hyde had earlier testified that an abnormal EEG
does not mean that an individual is incompetent to
stand trial, agreed that an EEG “lookled) at ... in
isolation” does not tell much about competency, and
explained that “it is possible [for an individual] to
have both normal and abnormal studies.” Also of
particular note, Dr. Hyde had explained during the
competency hearing that “you will see a lot of
abnormalities in the post-seizure period.” Taken
together, Dr. Hyde’s statements suggest that it was
to be expected that appellant’s EEG taken six days
after his December 2003 seizure would show
abnormal brain activity, and that no conclusion can
be drawn from that EEG that appellant was less
competent to enter a plea on January 5, 2004
(seventeen days post-seizure) than he had been at
the time of the competency hearing.

Moreover, the December 2003 EEG appears to be
cumulative of evidence already on the record. In his
January 8, 2004 letter, Dr. Hyde referred to the 2003
EEG as providing “additicnal evidence of abnormal

** Rather, Dr. Hyde's letter outlined appellant’s need for
medical supervision while in custody and suggested that
appellant’s brain damage qualified as “statutory mitigation in
the sentencing proceedings.”

3la

slowing over the frontal lobes” (emphasis added).
This had already been shown “by other abnormalities
on neurological examination reflecting his
underlying brain damage,” including “clumsy fine
motor movements with the left hand, bilaterial grasp
reflexes, and poor complex motor sequencing in the
hands bilaterally ."Dr. Hyde testified about these
same abnormalities at the competency hearing,
stating that in April 2003, appellant had “clumsiness
on a number of fine motor movements,” and
“primitive reflexes,” often seen in individuals with
frontal lobe dysfunction,” and noting that “there
hald] been some progressive brain damage” since
appellant’s 2000 EEG (which had also shown
“bilateral slowing over the cerebella hemispheres”).25
Cf Williams, 595 A.2d at 1005 & n.2 (psychological
report introduced at post-plea hearing had no
bearing on defendant’s competency because it added
nothing to what was already known at the time of
the plea).

Dr. Hyde’s January 8, 2004 letter discussed not
only appellant's December 24, 2003 EEG, but also
the facts that appellant’s “mental status fluctuates in
response to his seizure disorder” and that appellant
“often is confused for several days after a bout of

** With this motion to withdraw, appellant also presented a
letter from St. Elizabeths neuropsychologist Dr. Sidney Binks,
who stated that appellant suffers from dementia and severely
diminished ability to act within the confines of the law;” and a
letter from Dr. William Richie, who treated appellant during
December 2003 and who also stated that appellant showed
symptoms of dementia. This evidence, too, was cumulative.

32a

severe seizures.” It is not clear from the record
whether appellant’s December 18, 2003 seizure was
part of a “bout of severe seizures,” or whether, if
appellant was confused after the December 18
seizure, that confusion (perhaps “several days” of
confusion) had resolved or subsided by the end of his
twelve-day hospital stay. However, in denying
appellant’s motion to withdraw, the trial judge
emphasized that “[alll the evidence was considered,”
and one piece of important additional record
evidence was an evaluation by Dr. Lally, setting out
his findings from a 2.75-hour interview of appellant
that Dr. Lally conducted at D.C. Jail on December
31, 2003, 1.e., after appellant had been discharged
from Greater Southeast Community Hospital.6
During this visit with appellant, Dr. Lally observed
that appellant was “alert” and “oriented to person,
place, and time” and that appellant’s speech was
clear and at a normal volume.” Although appellant’s
“speech tended to be slower with lengthy delays in
his response to questions” about court-related
matters, there was “no evidence of a thought disorder
in the form or content of his thinking.” Appellant’s
“expression of affect was somewhat constricted, but
generally appropriate.” In short, this evaluation by
Dr. Lally-the only expert evaluation in the record
that is based on an interview of appellant after his
December 2003 seizure but before his January 5,
2004 guilty plea-contained nothing that required the

“© Dr. Lally’s evaluation was submitted to the court under cover
of the government’s January 5, 2004 “Notice of Expert Report
Issued by Government's Expert.”

33a

trial judge to conclude that appellant’s competence to
stand trial or plead guilty had diminished between
the November 2003 competency hearing and the
January 2004 plea proceedings.

We reach the same conclusion about the other
new evidence that appellant presented with his Rule
32(e) motion. Appellant contends that his Bureau of
Prison medical records generated since his guilty
plea-one dated October 22, 2004, and the other dated
January 7, 2005,-confirm that he is incompetent and
not malingering.?’ The trial judge refused to consider
these records, reasoning that they were not relevant
to appellant’s competency during the plea. The trial
court applied the appropriate standard. As the
Supreme Court instructed in Dusky, it is a
defendant’s “present ability” that should be
evaluated during competency evaluations. 362 U.S.
at 402. The trial judge did not abuse her discretion in
holding that appellant’s mental evaluations on dates
nine and twelve months after the guilty plea have
little if any relevance on the issue of whether
appellant was competent when he entered his guilty
plea. Cf£ United States v. Collins, 430 F.3d 1260,
1267 (10th Cir. 2005) (noting that a defendant’s
competency can change over time) and Aogers v.
Snyder, No. 00-007, 2001 U.S. Dist. LEXIS 8866,
*16-17 (D. Del. 2001) (disallowing new evidence
suggesting that petitioner was not competent to

7 These medical records indicate that appellant has “cognitive
deficiencies,” “adult antisocial behavior,” “Chronic dementia,” and
“episodic delirium,” and state that there was no evidence of “intentional
suppression of his performance (malingering).”

34a

stand trial in March 1996 as it was not relevant to
whether petitioner was competent to enter a guilty
plea in 1993).

Finally, as we did in Edwards, we accord great
deference to Judge Broderick’s personal observations
of and conversations with appellant, which informed
her judgment that appellant was competent to plead
guilty on January 5, 2004. The trial judge noted in
her order denying the motion to withdraw that she
“carefully assessed the Defendant at every question”
during the plea proceeding and that “the Defendant’s
mental state was understood and considered by the
Court at the time of the plea.”

For all the foregoing reasons, we cannot conclude
that the trial court abused its discretion in denying

the Rule 32(e) motion to withdraw on the grounds of
appellant’s (claimed) mental incompetency to enter a
plea.

B. The Rule 11 Proceeding

The Rule 11 plea proceeding in this case was
conducted on January 5, 2004. During a plea
proceeding, the court must make inquiry and satisfy
itself that “the defendant actually does understand
the significance and consequences of a particular
decision and whether the decision is uncoerced.”
Godinez, 509 U.S. at 401 n. 12 (emphasis omitted).
Appellant focuses on a number of exchanges that he
argues evidence his “confusion” during the plea
proceeding:

THE COURT: [Following an explanation of the
insanity defense] All right. Now, do you intend to use

35a

that defense, insanity defense?

DEFENDANT: Yes.

THE COURT: Okay. If you go to trial, you’re going to
use that?

DEFENDANT: Yes.

THE COURT: Do you want to go to trial and use that
defense?

DEFENDANT: Do I want to go to trial?

THE COURT: Yes.

DEFENDANT: I believe, yes. I believe so.

kekK*K*

THE COURT: Okay. Now, you’ve indicated today
that you would like to enter a plea of guilty; is that
correct?

DEFENDANT: Yes.

THE COURT: Now, if you enter a plea of guilty, Mr.
Wallace, do you understand that you would not

actually go to trial?
DEFENDANT: I understand.

THE COURT: All nght. And do you understand that
youd actually be admitting that you did, in fact,
commit a murder?

DEFENDANT: Yes.

THE COURT: Okay. So, therefore, there wouldn’t be
any defense at that time?

DEFENDANT: Right.

THE COURT: So if you did that, if you entered a plea
of guilty, then you wouldn’t be using the insanity
defense. Do you understand that?

DEFENDANT: Right.

THE COURT: Do you want to use the insanity
defense?

35a

that defense, insanity defense?

DEFENDANT: Yes.

THE COURT: Okay. If you go to trial, you’re going to
use that?

DEFENDANT: Yes.

THE COURT: Do you want to go to trial and use that
defense?

DEFENDANT: Do I want to go to trial?

THE COURT: Yes.

DEFENDANT: I believe, yes. I believe so.

kKk*k*

THE COURT: Okay. Now, you've indicated today
that you would like to enter a plea of guilty; is that
correct?

DEFENDANT: Yes.

THE COURT: Now, if you enter a plea of guilty, Mr.
Wallace, do you understand that you would not
actually go to trial?

DEFENDANT: I understand.

THE COURT: All right. And do you understand that
you'd actually be admitting that you did, in fact,
commit a murder?

DEFENDANT: Yes.

THE COURT: Okay. So, therefore, there wouldn’t be
any defense at that time?

DEFENDANT: Right.

THE COURT: So if you did that, if you entered a plea
of guilty, then you wouldn’t be using the insanity
defense. Do you understand that?

DEFENDANT: Right.

THE COURT: Do you want to use the insanity
defense?

36a

DEFENDANT: Yes.

THE COURT: All right. Well, de you want to go to
trial, then, or do you want to plead guilty?
DEFENDANT: Well, I would like to go to trial.

THE COURT: You would like to goto trial? All right.
So you don’t want to plead guilty to second-degree
murder today? )

DEFENDANT: No.

THE COURT: You want to have a trial with a jury?
DEFENDANT: Yes.

THE COURT: And have them decide?

DEFENDANT: Yes.

After a four-minute recess, defense counsel
reported that appellant “again indicated he would
like to take the Government’s plea offer. The
following exchange ensued:

THE COURT: All right. Mr. Wallace here. All parties
who were previously present are present again.

Mr. Handzo?

MR. HANDZO: Your Honor, we explained to Mr.
Wallace again that he has the choice of taking the
government’s plea offer to Murder II or going to trial
on Murder I and that if he accepts the Government's
plea offer of Murder II, there will be no trial and no
insanity defense or alternatively he could reject that
and go to trial on the more serious offense of Murder
I. He has again indicated that he would like to take
the Government’s plea offer.

THE COURT: Okay. All right. Let’s proceed, then.
So, Mr. Wallace, you want to take the Government's
plea offer; is that correct?

DEFENDANT: That’s correct.

36a

DEFENDANT: Yes.

THE COURT: All nght. Well, do you want to go to
trial, then, or do you want to plead guilty?
DEFENDANT: Well, I would like to go to trial.

THE COURT: You would like to go to trial? All right.
So you don’t want to plead guilty to second-degree
murder today?

DEFENDANT: No.

THE COURT: You want to have a trial with a jury?
DEFENDANT: Yes.

THE COURT: And have them decide?

DEFENDANT: Yes.

After a four-minute recess, defense counsel
reported that appellant “again indicated he would
like to take the Government’s plea offer. The

following exchange ensued:

THE COURT: All right. Mr. Wallace here. All parties
who were previously present are present again.

Mr. Handzo?

MR. HANDZO: Your Honor, we explained to Mr.
Wallace again that he has the choice of taking the
government’s plea offer to Murder II or going to trial
on Murder I and that if he accepts the Government’s
plea offer of Murder II, there will be no trial and no
insanity defense or alternatively he could reject that
and go to trial on the more serious offense of Murder
I. He has again indicated that he would like to take
the Government’s plea offer.

THE COURT: Okay. All right. Let’s proceed, then.
So, Mr. Wallace, you want to take the Government's

plea offer; is that correct?
DEFENDANT: That’s correct.

37a

THE COURT: So that means you don’t want to go
and use the insanity defense; is that correct?
DEFENDANT: No.

THE COURT: No, you don’t want to use it or, no,
that’s not correct?

DEFENDANT: No, I don’t want to use it.

THE COURT: Okay. Do you understand that if you
did go to trial, this is just if it did happen that you
went to trial, okay, and you used the insanity
defense, do you understand the Government would
still have to prove first beyond a reasonable doubt
that you committed the crimes that you’ve been
charged with?

DEFENDANT: Yes.

THE COURT: And do you understand that even if
you raise it, you could also raise other defenses, for
example, self-defense.

DEFENDANT: Yes.

THE COURT: Do you understand that if you went to
trial and used the insanity defense that that would
only be considered if the jury found first you were

guilty beyond a reasonable doubt?
DEFENDANT: Yes.

(Pause)

THE COURT: Now, after all we’ve talked about, do
you still not want to raise the insanity defense, but
instead wish to plead guilty?

DEFENDANT: Yes, that’s correct.

THE COURT: All right. Why don’t you tell me why
you want to do that.

DEFENDANT: I guess just being able to see actually

38a

evidence that was supposedly used in this particular
case.

THE COURT: So you're saying the evidence has
convinced you that it’s in your best interest to plead
guilty?

DEFENDANT: I don’t-don’t say it that way. I haven't
seen any evidence myself.

THE COURT: Im sorry then. I’m just trying to
understand your answer. Why do you want to plead
guilty in this case?

DEFENDANT: It’s just-been in courts for quite a
while now, and I just like to-for anyone to actually
show any evidence proving that I am guilty to just
show that evidence.

THE COURT: Okay. Now, do you understand that if
you plead guilty, the Government is going to tell you
what they would have proven, but they’re not going
to be bringing in witnesses and things to testify.

Do you understand that?

DEFENDANT: Correct.

After the government’s proffer of what the
evidence would show, the court asked appellant to
state what happened on the day in question. The
following exchange occurred: THE COURT: So what
you're telling me, Mr. Wallace, is you were defending
yourself? You're telling me you didn’t commit a
murder, you defended yourself? Is that what you're
telling me?

DEFENDANT: I know I used a knife in this
particular case.

THE COURT: Did you stab him in the neck?
DEFENDANT: It was in his neck

39a

THE COURT: And was it a sharp knife?
DEFENDANT: It was a butter knife.

THE COURT: Was it a sharp butter knife?
DEFENDANT: No.

THE COURT: Well, then how did it stab his neck?
DEFENDANT: That’s what I wanted to know also,
and I was-while using the vehicle-

THE COURT: Why did you feel you had to use a
knife, Mr. Wallace?

DEFENDANT: You say why?

THE COURT: Yes. Why didn’t you just punch him
back?

DEFENDANT: Well, I was on the ground myself,
and I know I was suffering from low blood sugars
myself. I was real just-just wanted to eat the-my
hamburgers that I had.

THE COURT: Well, this is more than 15 minutes
after you saw him the first time and you still hadn't
eaten your hamburgers?

DEFENDANT: I didn’t get them all. I was just
chewing on them. I didn’t actually finish them.

THE COURT: Mr. Wallace, are you telling me that
this was self-defense? Are you telling me that?
DEFENDANT: The knife was used in this case.

THE COURT: Are you telling me you used more
force than you had to use by using the knife.
DEFENDANT: I guess that didn’t have to be used. I
don’t think-no, I’m not saying that.

THE COURT: You're not saying what?
DEFENDANT: It could have been done, I guess,
getting rmght back up and catching the guy and
punching him back, I guess.

THE COURT: All nght. So you used more force than

40a

you had to use? Is that what you're saying?
DEFENDANT: I guess so....

THE COURT: Are you pleading guilty in this case
because you did, in fact, stab this gentleman with
tlo]o much force?

DEFENDANT: I don’t thirk too much force was
used.

THE COURT: Let’s go back. You said you didn’t have
to do the stabbing, right?

DEFENDANT: I didn’t have to 1:s¢ it.

THE COURT: Right, that’s what I mean. Did you do
that? Did you stab him when you didn’t have to?
DEFENDANT: I guess so.

THE COURT: You guess so or are you sure?
DEFENDANT: Yes. Yes.

THE COURT: Are you sure about that?
DEFENDANT: Yes.

THE COURT: Is that why you pleaded guilty?
DEFENDANT: Yes.

Finally, appellant focuses on the following
portions of the transcript from the January 15, 2004
Frendak hearing:

THE COURT: When you were here last time, Mr.
Wallace, we talked about whether or not you would
give up your right to an insanity defense. Do you
know what I mean by that?

DEFENDANT: Yes.

THE COURT: Do you still want to do that?
DEFENDANT: No.

THE COURT: You don’t want to give up your right?
DEFENDANT: No.

4la

THE COURT: ... Let me ask the question in a
different way okay, Mr. Wallace?

DEFENDANT: Okay.

THE COURT: What I mean by an insanity defense is
that you would go to trial and you would try to
convince the jury that you didn’t-you are not guilty of
this crime because you were insane at the time. Do
you want to go to trial and try to convince the jury

that you were insane at the time?
DEFENDANT: No.

To summarize, in the exchanges that appellant
now highlights, appellant told the trial court that he
wanted both to plead guilty and to pursue an
insanity defense, both to plead guilty and to have a
jury trial, and both to enter a guilty plea and to put
the government to its proof.28 He both pled guilty
and appeared to assert a claim of self-defense and
lack of excessive force. Although he eventually stated
affirmatively that he stabbed McCants when he did
not need to do so, this answer was preceded by the
equivocal response that he “guessled]” he had done
so. In addition, his answers to some of the court’s
questions were non-sequiturs.29 In short, appellant

*® Cf Gooding v. United States, 529 A.2d 301, 311 (D.C. 1987)
(concluding that pre-sentencing withdrawal of appellant’s guilty
plea should have been permitted, in part because “the inherent
ambiguity in appellant’s responses at the time the guilty plea
was entered implies the possibility of some confusion”).

a Appellant also quotes the following portion of the January 15,
2004 transcript as evidenc

[Text truncated at 120,000 characters. The full text is on the page linked above.]

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0381%3A1. Public record. Not legal advice.