Malingering Incompetency to Stand Trial due to Brain Injury
In 2013 four men were charged with crimes including rape of a minor. One assailant posted the rape on Youtube which spread to other social media, ultimately leading to their arrest, trial and conviction.
One man claimed he was incompetent to stand trial due to a childhood brain injury. Dr. Adhia concluded the degree of claims of incompetency were indicative of malingering.
A Case Study in Malingering
Can a childhood brain injury make an adult incompetent to stand trial?
That was the claim of one assailant. I was asked to conduct an assessment.
He said [I] “should probably stop pretending…”
By Sanjay Adhia, M.D.
Rape Video on YouTube
I performed an Independent Medical Exam on a 20-year-old male to evaluate his Competency to Stand Trial. He was charged with Using a Child in Display of Sexually Explicit Conduct, Rape, Sodomy and additional charges. At the time, he and three other adults had been arrested for charges associated with the crime. The case was even more disturbing because one man posted a video of the rapes on YouTube, which ultimately led to the arrests.
The case was tried in 2013 and all four men were found guilty and sentenced.
The Question of A Head Injury
One of the men had a medical history of a head injury from a fall at the age of two from a 20-foot patio. This resulted in an obvious skull deformity with minor cognitive deficits. When asked basic questions about his case and the legal proceeding against him, he indicated none to very little knowledge. On my initial evaluation, I rendered No Opinion with a strong suspicion for Malingering (exaggerating symptoms for secondary gain, in this case to avoid going to prison). As I could not render an opinion with medical certainty, I requested the court additional time to observe and evaluate him at the State Hospital.
Records, Records, and More Records
I reviewed countless documents thoroughly including psychological tests designed to detect malingering and MRI reports. There were detailed nursing reports of his behavior. Although the documentation confirmed he had a head injury with cognitive deficits, clinically he was functioning at a higher level than suggested by my initial Independent Medical Exam.
A Second Independent Medical Examination Is Necessary
I was granted my request to obtain additional information and perform another Independent Medical Exam of the man after a month. The medical records indicated he exhibited an ability to learn basic legal education yet he demonstrated poor effort when offered legal skills classes.
He again claimed to have no knowledge of the legal case against him. For example, he would not name any of his charges. I confronted him with the inconsistencies between my examination and the chart. I even read out nursing reports back to him verbatim indicative of malingering. He discounted the discrepancies and had little to say in response.
I performed a 21 Item Test for effort which exhibited poor effort. This was consistent with his performance on the Test of Malingered Memory (TOMM).
He said [I] “should probably stop pretending…”
After my interview, I continued to review the chart over the coming week. He was angry at the treatment team for documenting all his words and actions. Although he indicated he knew everything he said was being documented, he continued to speak freely. He indicated he was trying to avoid going to prison and he does not want to “pass” his competency evaluation. He then stated that he “should probably stop pretending that I’m retarded then or just tone it down on my retarded scale”.
The reported external gain was a motivation for malingering. Poor effort, evasiveness, diagnosis of Antisocial Personality Disorder and the psychological testing were also indicative of Malingering.
My opinions must be rendered with medical certainty. I removed his other previous cognitive diagnoses (Dementia and Mental Retardation) as they were based on prior IQ tests that, in my opinion, were not valid in a medico-legal context as they were not completed in conjunction with effort testing.
I did suspect a mild cognitive disorder but could not diagnose this with medical certainty.
The Antisocial Personality Disorder better accounts for his aggressive behavior than any cognitive disorder would, as his aggression was often premeditated.
My overall impression was that the head injury may have decreased his intelligence enough to prevent him from successfully Malingering but not enough to render him Incompetent to Stand Trial.
In other words, he was not smart enough to lie effectively.
I opined the evaluee was Competent to Stand Trial. He was found guilty of the charges and sentenced.
The men were, collectively, sentenced to 34 years of jail time.