Filing # 105344416 E-Filed 03/24/2020 11:55:07 AM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT, IN AND FOR NASSAU COUNTY, FLORIDA. CASE NO.: 45-2018-CF-815-A30CX 45-2018-CF-373-A30CX STATE OF FLORIDA. v, KIMBERLY KESSLER A/K/A JENNIFER SYBERT, Defendant. ORDER FINDING DEFENDANT COMPET This court adjudicated Defendant incompetent to proceed in both cases on July 3, 2019, after the parties stipulated to the admissibility of reports from Dr. Louis Legum, Ph.D., and Dr. Umesh Mhatre, M.D., and to the truthfulness of the findings containe« those reports. Based on the written opinions of both mental healtheare professionals, the court further determined that Defendant met the criteria for involuntary commitment to a treatment facility under the care of the Department of Children and Family Services as provided in section 916.13(1), Florida Statutes. Thereafter, the, court received an updated evaluation report dated October 9, 2019, from Dr. Graham Danzer, Ph.D., at the Florida State Hospital finding Defendant restored to competency. Pursuant to Fla, R. Crim, P. 3.212, the court then conducted a competency hearing on February 28, 2020, where Dr. Legum, Dr. Danzer, and former Defense counsel, Theresa Sopp, Esquire, all testified. For the reasons outlined below, the court finds Defendant is competent to proceed. Expert Testimony GRAHAM DANZER, Ph.D. Dr. Danzer testified first at the hearing and provided the following opinions consistent with his October 2019 report: Electonicaly Filed Nassau Case # 18cr000d HAKYS bba/2020 11:55:07 AMDr. Danzer is a licensed psychologist employed at the Florida State Hospital. 90% of his work is dealing with competency evaluation and restoring competency. He has performed between 1,000 to 1,500 competency evaluations since becoming a licensed psychologist in 2016, testified as an expert 10-15 times, and authored 18 journal articles and 4 full length text books. During the last few years of his practice, he has focused on forensic examination. Dr. Danzer’s next article to be published relates to standard malingering issues. Even the Defense's expert acknowledged Dr. Danzer is especially proficient in determining issues related malingering. Dr. Danzer first came into contact with Defendant after she was transported to the Florida State Hospital in July, 2019, approximately eight months ago. Defendant was assigned to Dorm E, a secure facility which typically has a smaller number of patients. Dr. Danzer works with a third of the patients in Dorm E each day. While there, Defendant had her own room in a dorm setting with access to the “day” room and dining room where she was monitored twenty-four hours a day, seven days a week by hospital staff. Defendant was also assigned a treatment team with two different psychiatrists, social workers, and a team coordinator. Dr. Danzer had frequent contact with both her team members and the Defendant herself. He reviewed the daily nursing notes and observations from the nursing staff to track her progress. Dr. Danzer believed he was well informed about Defendant’s daily behavior and her overall presentation in the 2 Ys months Defendant was a resident at the hospital. In addition, he personally spent between 5-6 hours with Defendant administering a series of psychological tests. During her stay at the Florida State Hospital, Defendant consistently displayed appropriate use of day room and dining areas. In his report, Dr. Danzer observed: FSH-daily dorm and nursing staff observations over these past-about two and one- half months of hospitalization (with the benefit of 24 hour a day and seven day a week monitoring) offered no indication of daily functional (i.e., trial-related) impairment, Further, there were no indications of impairment despite prior impressions of psychotic disorder and medications not appearing from available records to have been prescribed in jail, nor since admission to FSH to date. According to Dr. Danzer, the staffs daily/continuous observations of Defendant’s presentation “suggested far greater stability than what was reported of her presentation in various community settings and before she was arrested.” Dorm and nursing staff consistently documented Defendant as “selectively” participating and/or refusing to participate in daily medical services and rehabilitative classes or activities. Before Defendant arrived at the state hospital, the doctors evaluating her believed she suffered from a mental illness and diagnosed her with possible delusional disorder However, team psychiatrist, Dr. Clifton Lake, provided his final diagnosis for Defendant as “unspecified personality disorder.” A personality disorder is not a mental illness, but a concern about one’s character. In her interviews with Dr. Danzer, he found Defendant ‘gave plausible/reality-based and logical responses to questions about her case and events leading to her arrest without marked abnormality. Defendant appeared to maintain attention Page 2 of 10throughout longer interviews and, at no point, did she show obvious indication of memory impairment, speak loudly or ramble irrelevantly, make bizarre or clearly paranoid statements, behave eccentrically, or show clear and obvious signs of vulnerability to decompensating under stress. Dr. Danzer was clear in his testimony that there was no evidence of Defendant acting in a delusional manner. Defendant has, at times, expressed unusual belief systems such as discussing the “illuminati,” but that is not the same as delusional. Defendant never blurted out her belief systems during his conversations with her about the case. Overall, Dr. Danzer observed no psychotic process during his experience with Defendant. Defendant has no history of taking any psychotropic medic: ither before or afler her arrest in these cases and was not prescribed any medications while at the Florida State Hospital. She has, in fact, steadfastly refused to take medications beeause she believes that there is nothing wrong with her. For Dr. Danzer, the lack of medication supports Dr. Lake’s diagnosis that Defendant suffers from a personality disorder rather than a mental illness such as schizophrenia or delusional disorder. Three psychiatrists have seen her and none have seen fit to prescribe any psychotropic medication. According to Dr. Danzer, “All women in Dorm E” are “basically” on medications, but that’s not true for Defendant. If Defendant were suffering from a delusional disorder or schizophrenia and not taking medication, her condition would get worse with stress, Yet, her condition did not decompensate and he was able to sit down with her for hours of interviews and testing. ‘Throughout the pendency of this case, Defendant has displayed significant behavior where she has not been cooperative with her attorneys, jail staff, and evaluating mental healtheare professionals. She. has at various times even refused to cat meals. Being uncooperative, however, is not a symptom of mental illness and nothing in the Diagnostic and Statistical Manual of Mental Disorders - Five (DSM-V) associates the two. Moreover, her refusal to eat meals at the jail, cooperate with her attomeys, or otherwise conform her behavior to accomplish tasks that are often in her best interests are questions of Defendant’s will to do so and not her capacity to do so. For example, Dr. Danzer asked her about refusing to eat at the jail and said responded that she would eat “if she went to Publix” and Defendant actually routinely ate snacks at the commissary using her personal money. Defendant’s statements and actions indicate that eating or not eating is a “choice” for Defendant. Moreover, Defendant displayed a pattern where she would consistently become more cooperative, such as resuming normal dietary pattems, when jail or hospital staff would accommodate her specific requests. Dr. Danzer administered a series of psychological tests to Defendant while she was at the Florida State Hospital. The first test was the revised Minnesota Multiphasic Personality Inventory (MMPI-II). Even though Dr. Danzer explained to Defendant that the test required only a fifth grade reading level, Defendant refused to complete the test unless she was provided a dictionary. Dr. Danzer supplied the dictionary and, true to the pattern he observed in other areas, Defendant became more cooperative and took the test. Still, Defendant did not complete 20 of the 338 true/false questions and the test results were, Page 3 of 10thus, deemed overall invalid due to her defensiveness and noncooperation. Her answers, however, suggested a general defensiveness, an attempt to present herself as uncommonly virtuous, and an under-reporting of even minor faults and shortcomings most people will usually acknowledge. Next, Dr. Danzer administered the Evaluation of Competency to Stand Trial (The ECST-R) which is a research-supported tool intended to measure “psycho-legal” competency. The results showed minimal to no impairment and Dr. Danzer related that most people who give the same answers Defendant gave during the test are found competent. Defendant talked about her case in a respectful and relevant manner that displayed factual knowledge. Some of the questions were more challenging and he typically finds those that are incompetent will decompensate if he increases the stress in a question. Defendant, however, continued to engage and did not display any indicators of impairment, all without medication. Dr. Danzer actually asked Defendant about the evidence against her and she was able to describe itand make statements about “where the State might go” and answer questions about the strength and weakness of the State’s evidence. Defendant's responses concerning the evidence were neatly identical to those given by her former public defender, Theresa Sopp, Esquire, during an interview with Dr. Danzer. The third and final test administered by Dr. Danzer was the HARE Psychopathy Checklist, 3rd Edition (PCL-R). Psychopathy is a characterological or personality-driven predisposition towards disingenuous statements; conning and manipulation; impulsivity; a particular prioritizing of self-interest; exploitation of the perecived weaknesses of others; aversion to taking responsibility for various adverse events; callousness and a lack of empathy; shallow emotions; various oddities of thinking and speech; inflated self- representations; and hostility/conflicts with authorities, significant others, and romantic relational partners. A person with a psychopathic personality is one who has social skills and can.be likeable, but has a short fuse and a superficial-type of charm. They can be charming, but manipulative and capable of violence. Psychopathic individuals have characteristics that are commonly associated with mental illness, but do not actually suffer from a mental illness. Defendant’s scores on the PCL-R were suggestive of psychopathy. Dr. Danzer noted certain aspects of Defendant’s reported history were relevant to psychopathy including recurring indications of harm or risk of harming small animals; weapons possession; exploitative and poorly boundaried relationships; and interpersonal violence (i.c., family violence, domestic violence, and child abusc/protection issues). In. Dr. Danzer’s opinion, Defendant’s PCL-R scores reasonably call into question the entirety of her alleged mental health history and suggest prior interpersonal difficulties and various oddities of thinking, speech, and lifestyle were likely related to various characterological factors. Page 4 of 10Dr. Danzer explained that Defendant’s scores on the PCL-R, as well as statements made by the Defendant, suggest there will be foreseeable behavioral issues during trial proceedings. Defendant made statements during interviews to the effect that she “might act out.” These statements, however, were offered by Defendant in a manner that the doctor believed were volitional on her part. Dr. Danzer spoke with Defendant for a long period of time and observed a level of planning and organization in the way she spoke about disrupting court proceedings suggesting it was a matter of choice. Defendant is capable of disclosing and discussing the facts of her case and, if she refuses, it would be a question of her willingness, not her capacity to actually do so. In Dr. Danzer’s opinion, Defendant should be able to consult with her attorney. Defendant has attitudes that are not “pro- social,” but they are not a function of mental illness. Overall, Dr. Danzer testified Defendant has the sufficient present ability to consult with her counsel with a reasonable degree of rational understanding. She understands the nature of the charges in her case, the possible range of penalties, and the roles of her altomey, the State Attomey, and the court, Defendant maintains a rational understanding of the State’s evidence against her and should be able to disclose pertinent facts to her attomey if she chooses. Any decision to not do so would be volitional on Defendant's part and not a question of her capacity due to mental illness. If she decides to testify, she has the ability to do so in a relevant manner as she demonstrated she was capable of having rational and logical discussions about her case during her stay at the state hospital. Finally, Dr. Danzer believes any decision to act out in court or otherwise display improper courtroom behavior would be the product of choice and not the result of any mental illness. LOUIS LEGUM, Ph.D Louis Legum, Ph.D., initially evaluated Defendant's competency at the request of Defense counsel and found her incompetent to proceed. Defendant submitted to an evaluation by Dr. Legum before she was sent to Florida State Hospital on three separate occasions, but upon her return she refused to meet with him again in March of this year. Dr. Legum believes Defendant remains incompetent to proceed to trial. Dr. Legum’s opinions differ from Dr. Danzer’s in a few key respects. First, Dr. Legum diagnosed Defendant with delusional disorder. Delusional disorder is a fixed perception not based in reality. Delusional disorder and personality disorders are not mutually exclusive and, while Dr. Legum agrees Defendant may also have a personality disorder, he believes her past uncooperative behavior with her attorneys, jail staff, and mental healthcare evaluators, along with some of her “bizarre” past actions and statements, Were manifestations of someone who was mentally ill and suffering from a delusional disorder. Dr. Legum stated that delusional disorders can wax and wane and, in the relatively calm environment of the Florida State Hospital, he would expect Defendant to be less delusional. Page 5 of 10A second key difference in Dr. Legum’s opinions and Dr. Danzer is Dr. Legum believes Defendant’s delusional disorder prevents her from rationally consulting with her attorneys in the case, disclosing pertinent facts, and then testifying in a relevant manner. According to Dr. Legum, Defendant “knows all the legal stuff backwards and forwards.” He estimates Defendant has a 130 1Q and a photographie memory so she has an above average recall of the facts in her case and she has no trouble appreciating the charges against her, the possible penalties, and the manner in which the adversarial system works. However, Defendant continues to engage in behavior that is at odds with her best interests and that is not consistent with someone with a plain personality disorder. He believes Defendant is “smart enough” to mask her delusional condition, but cannot maintain that vigilance 100% of the time. Defendant has enough residual self-awareness to be able to shut down her delusional thoughts when she has to. She does a good job of presenting a fagade of lucidity and normality, but then will do something or say something that reveals her delusional thoughts. Dr. Legum is unsure if medication might be effective to decrease Defendant's paranoid delusions to the extent she will be able to consult with her attorneys with a reasonable degree of rational understanding indings of Fact and Conclusions of Law Ifa person is adjudicated to be mentally incompetent, itis presumed he or she continues to be so until it is shown that competency has been restored and this presumption shifts the burden of proving competency to the State. See Devers v. State, 186 So.3d 1126 (Fla. 3d DCA 2016). “In determining whether an accused is competent to stand trial, the trial court must decide whether the defendant ‘has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as a factual understanding of the proceedings against him.’” Reeves v. State, 987 So. 2d 103, 105-106 (Fla. 5 DCA 2008) (quoting Hardy v, State, 716 So. 24 761, 764 (Fla. 1998)); see also, § 916.12(1), Fla. Stat.; Rule 3.211(a)(1), Fla, R. Crim. P. To assist in making this determination, section 916.12(3), Florida Statutes, and Rule 3.211(a)(2), Florida Rules of Criminal Procedure, direct examining experts to consider a defendant’s capacity to: (1) appreciate the charges or allegations against the defendant; (2) appreciate the range and nature of possible penalties that may be imposed; (3) understand the Page 6 of 10adversary nature of the legal process; (4) disclose to counsel facts pertinent to the proceedings; (5) manifest appropriate courtroom behavior; and (6) testify relevantly.! In the instant case, both testifying experts agree Defendant adequately demonstrated that she is able to appreciate the charges and allegations, appreciate the range of possible penalties, and understand the adversarial nature of the legal process. Their dispute centers mainly on whether ¥y to work with counsel and disclose pertinent facts to them about her case, testify relevantly, and, to a lesser extent, manifest appropriate courtroom behavior. In other words, is her past behavior and unwillingness to cooperate with almost anyone involved in the defense of her case volitional or the product of a mental illness? “In situations where there is conflicting expert testimony regarding the defendant’s competency, it is the trial court’s responsibility to consider all the evidence relevant to competency and resolve the factual dispute.” Hardy v. State, 716 So. 2d at 764. Although trial judges are often required to make eredibility assessments, that task is made more difficult in this case because cach expert has done a thorough job in evaluating the Defendant’s capabilities and Current status to arrive at their opinions, The testimony and evidenee presented by each clearly and succinctly outlined the basis for their opinions and highlighted the differences between them. In reality, it appears both experts have reached opposite conclusions based on an honest and good-faith professional difference of opinion. That sai |, the court still must determine if Defendant is competent to stand trial and decide which opinions should be given greater weight. After listening to the testimony, observing the demeanor of the witnesses, reviewing the expert reports, and considering all other applicable " These are sometimes referred to as “Dusky” factors in reference to the decision in Dusky v. U.S., 362 U.S. 402; 80 S. Ct. 788; 4 L. Ed. 2d 824 (1960), that established criteria for courts to consider when determining a defendant's competeney to stand trial Page 7 of 10evidence, the court accepts the opinions of Dr. Danzer over Dr. Legum on the issues of Defendant’s present ability to rationally consult with her attorneys, testify at trial in a relevant manner, and behave appropriately in the courtroom. Dr. Danzer had the advantage of working with a team of mental healtheare professionals who observed Defendant twenty-four hours a day, seven days a week. Dr. Legum did not have the benefit of that level of interaction. As Dr. Umesh Mahtre, M.D. indi ted in his report, the “best way” to confirm Defendant’s diagnosis is to place her in inpatient care where trained personnel can observe her around the clock. Dr. Danzer provided a more credible explanation as to why he holds the opinion that Defendant does not suffer from delusional disorder and, instead, has a personality disorder suggestive of psychopathy. He noted that the staff observed Defendant display far greater stability on a day-to-day basis than reported by her attorneys or inher past history. He extensively interviewed Defendant and fotind she gave logical, rational answers to questions about her case and had a detailed understanding of the State’s evidence, Dr. Danzer noted Defendant focused on the idea that all of the evidence was fabricated or planted, but he explained that this is a logical, reality-based defense and competency does not require it to be persuasive or realistic in its chances of success. Dr. Danzer recognized that Defendant's interactions with her attorneys have been difficult, and that there is a history of Defendant being aggressive, difficult, and uncooperative towards others she has known in her past. Dr. Danzer explained, however, that being uncooperative and difficult is not a symptom of mental illness and nothing in the DSM-V associates the two. Additionally, before her arrest Defendant was able to perform higher-level functions like maintaining a bank account, renting a vehicle, earning regular income, using a prepaid credit card, and maintaining an orderly storage unit. A person with an untreated mental illness such as delusional disorder typically would not be able to act in this manner. Dr. Danzer testified these Page 8 of 10types of activities are more indicative of a normal functioning person and, the more a person can function normally, the further away you get from a likely diagnosis of mental illness. Dr. Danzer explained that individuals with mental illness can perform these functions, if medicated, but Defendant has never been prescribed, much less taken, psychotropic medication. Unlike Dr. Legum, Dr. Danzer also tested Defendant with the MMPI-2, the ECST-2, and the PCL Although Defendant's MMPI-2 results were invalid because she refused to answer 38, questions, her ECST-2 answers showed only mild to moderate impairment and were consistent with individuals who are not incompetent. Also, Defendant's PCL-R results were suggestive of psychopathy. Psychopathic personalities have traits that include manipulation; impulsivity; a particular prioritizing of self-interest; exploitation of the perécived weaknésses of others; ave n to taking responsibility for various adverse events; callousness and a lack of empathy; shallow emotions; various oddities of thinking and speech; inflated self-representations; and hostility/conflicts. with authorities, significant others, and romantic relational partners. In. her reported past history, as well as the evidence of her interactions with her attorneys and mental healtheare providers presented at the hearing, Defendant has displayed many of the character traits of someone with a psychopathic personality disorder. Dr. Danzer viewed Defendant's refusal to cooperate with her attomeys in the defense of her case as more of a question of her will rather than her capacity due to mental illness and, based on these and other factors, the court finds this to be the more persuasive testimony. Defendant has the present ability to consult with her attomeys with a reasonable degree of rational understanding and an above-average fuctual understanding of the proceedings against her. The court finds she is competent to proceed. Accordingly, IT IS ORDERED: Page 9 of 101. Defendant is competent to proceed to trial in both cases. 2. Defendant has the sufficient present ability to consult with her lawyers with a reasonable degree of rational understanding and has a rational as well as a factual understanding of the proceedings against her. 3. These proceedings shall no longer be suspended and the attorneys may proceed forward with all relevant discovery and trial preparations. DONE AND ORDERED in Chambers, at Jacksonville, Duval County, Florida, this 24 day of March, 2020. Copies furnished to: Donna Gregory Thurson, Assistant State Attorney Jordan Beard, Assistant Public Defender 45-2018-CF-815-A30CX 45-2018-CF-373-A30CX, Page 10 of 10