opinion that defendant would be able to participate in an extended trial, conducted under flexible and monitored conditions.
He found and recognized that even though Mr. Passman has a mild memory difficulty, this should not present significant problems for the defendant in recollecting situations of particular importance in his life, for example, facts related to his official actions during the time period covered by the indictments; matters personally important to the defendant and in which he was immediately involved are likely to be remembered. The defendant's memory of recent events was evidenced by his recollection of two psychiatric examinations conducted in Houston, Texas, and Baltimore, Maryland, within the past two weeks, as well as an appointment with Dr. Ulrich in early June. Indeed, Dr. Yochelson testified that defendant's memory, as well as his depression, showed improvement between his first interview in May and the one held within two days of the hearing.
Dr. Yochelson found that, while Mr. Passman is a literal-minded individual, he has the capacity to understand and participate in a discussion. Therefore, he can consult rationally with counsel both before and during the course of trial. Should he take the stand, he has sufficient memory and communication skills to testify in his behalf. Dr. Yochelson expressed his opinion that the defendant's thinking is relevant, that he shows sufficient judgment, demonstrates a capacity to abstract in situations of a personal nature, and otherwise manifests comprehension.
The defendant has a hearing problem described by Dr. Yochelson as mild, but by other witnesses, as ranging from a 30 to 40 percent impairment. However, since this is a recognized problem, necessary adjustments and accommodations can be made during the course of a trial.
In the doctor's judgment, Passman understands and recognizes the difference between the two indictments. He understands the role played by the judge, jury and counsel, both government and defense, during the course of a trial; the role played by witnesses during the course of the trial and the matter of their direct and cross-examination. The defendant has the ability and capacity to consult and confer with counsel, both in advance of and during the course of trial, in a rational and intelligent manner. Dr. Yochelson further ventured that should the defendant testify in his own behalf, he would have sufficient memory and otherwise have the ability and the capacity to communicate.
In contrast to Drs. Black and Hall, Dr. Yochelson's opinions were based on his clinical psychiatric examinations. While he did not question the validity of neuropsychological examinations or psychological testing, he pointed out that the subject is tested under artificial conditions and circumstances unreal to life. A clinical psychiatric examination, however, tends to stress and rely more on an individual's problems and capacities in actual life circumstances. Dr. Yochelson further observed that abnormal findings in psychological testing are likely to be more pronounced than can be validated by observing an individual's functioning.
This Court recognizes fully the credibility and the general acceptability given to mental status examinations. However, the medical witnesses in this proceeding do not disagree on the presence of an organic brain syndrome condition caused by Alzheimer's disease, or, in one doctor's opinion, arteriosclerosis. The more important aspect, however, is the degree of that impairment and whether the defendant is rendered incompetent to stand trial.
The question of Mr. Passman's health and physical competency is as important as the mental competency inquiry. All agree that, at 78 years of age, he suffers from certain infirmities, none of which promise to improve. However, the expert witnesses also agree that the risk and strain inherent in standing trial would not alone substantially jeopardize his life, assuming, as the Court will ensure, that courtroom sessions are flexible and medical care is available. Therefore, under the test of United States v. Doran, supra, Mr. Passman is physically competent to proceed in these cases.
A related question, which has justifiably preoccupied counsel, witnesses and the Court, is whether legal proceedings would substantially increase the risk of the defendant taking extreme means. The medical witnesses do not discount this possibility, both in light of statements attributed to the defendant and the statistical evidence that suicide occurs significantly more often in people of his age and condition than in the general population. Dr. Hall ranked the suicidal risk as high, due not only to fear of legal proceedings but also to loss of bodily function and confusion. Dr. Yochelson, with general consensus, testified convincingly that there is a greater probability that defendant would survive than commit suicide, basing this opinion among other things on the fact that Mr. Passman had read and discussed the indictments at the time of his second examination, though he had originally claimed that reviewing those documents would be disastrous. He further testified that the defendant has a personality quality which would keep him from giving up and does not exhibit the guilt feelings that appear almost invariably in people who are major suicidal risks. Indeed, considering Mr. Passman's frequent statements that he would seriously consider suicide only if found guilty, it is not unthinkable that the opportunity to prove his innocence at trial would have a positive effect on his depression.
Without presupposing to quantify anything as subtle as suicide potential, the Court finds from the testimony and evidence that the impact of legal proceedings on the defendant would not be so great as to cause a substantial risk of self-destruction.
One final observation is appropriate. Throughout the four days of testimony and the final period of argument, the Court has observed the defendant. He has been passive and unemotional. But, nonetheless, he has been attentive. He has not been demonstratively alert but he has at times appeared to be both responsive and sensitive to selected testimony of both the medical and lay witnesses, showing an awareness of who they were and what they said. The Court has not observed him confer with counsel regularly or with any degree of frequency. Considering the nature of a large portion of the medical testimony, this of course is understandable. On the day of his arraignment, which followed the competency hearing, he appeared relaxed, walked without assistance, responded to the limited questioning in a clear, crisp manner and otherwise appeared quite alert.
In circumstances such as this, the defendant must have the ability to defend himself. Perfect mental and physical health is not required. Good mental and physical health is not required. A defendant is competent to stand trial in a criminal proceeding if he is able to understand the charges and the nature of the proceedings; to assist and cooperate with his counsel; to follow the evidence; to make a proper defense; and to participate in his defense.
Having evaluated the testimony of the witnesses and having reviewed the entire record and the applicable legal principles, the Court, in the exercise of its discretion, determines that Otto E. Passman is presently competent to stand trial.
The duty to ensure a fair trial for Mr. Passman is continual and the Court recognizes that it must be alert to circumstances suggesting a change in his condition. This responsibility is shared by both defendant's counsel and government counsel who have closer contact with him. At this point, however, on the basis of all evidence and testimony, the motion of defense counsel to postpone further proceedings must be denied. This matter shall proceed immediately to and through the pretrial stages.