Court Watching: Judge Green is asked to decide if defendant is faking being mute

34th District Court Chief Judge Tina Brooks Green heard more than an hour and a half of testimony from medical professionals in her courtroom on Feb. 1 about a defendant who may or may not be pretending to be mute to avoid facing a felony charge.
She is being asked to determine if Joshua Lee Morris, 24, of Van Buren Township is competent to stand trial on the charge of reckless driving causing death on July 6, 2014.
Morris was driving a Chevrolet Malibu northbound on Morton Taylor Road, just north of Van Born, in VBT at about 2:10 a.m. when he lost control of the car and hit a tree. Dead at the scene was his passenger and lifelong friend Marcus McIntosh, 21.
Morris was taken from the scene by Survival Flight to St. Joseph Mercy Hospital where he reportedly was in a coma for three days.
When he was charged with the felony last June, his defense attorney Murray Duncan asked for a competency hearing.
At the Feb. 1 court session before Judge Green, Duncan said his client can’t communicate about the case, has a closed-head injury and has been in the Walter Reuther Psychiatric Hospital in Westland for 14 months. He said Morris can communicate in writing, but it is just gibberish.
“I have a client I can’t talk to” to help with the case, Duncan said.
Judge Green said there was an order for a competency hearing in August 2015. She said she didn’t think it was necessary to have the defendant in court for that hearing and her Feb. 1 hearing because she thought it was a simple decision. So, she said it was unnecessary for Morris to be present.
But it turns out she got conflicting reports on his competency from testimony and Wayne County Assistant Prosecutor John Cayce alleges Morris is malingering, pretending to be mute, to avoid facing the felony charge.
Duncan said the competency reports every 90 days have shown he is incompetent, incompetent, and “kind of competent.” He said he leaves the decision to the court.
Prosecutor Cayce said there is no physical damage to the brain to cause his failure to speak or talk.
Duncan said his client is bipolar. Later in the session, Morris was described as having a ninth-grade education and was a special education student suffering from ADHD (Attention-Deficit/Hyperactivity Disorder).
Dr. Michele Hill, a psychiatrist, testified that Morris was significantly depressed and apathetic when she met him. He spoke — but very little — cried, and had a lack of motivation. She said he has no observable brain injury.
She said a year after the accident he was articulate and his depression was controlled with anti-depression drugs and therapy.
“After he was informed about the charge, he stopped speaking,” she said.
Judge Green suggested that someone already suffering from depression could have a triggering event, like finding out about the charges, which could cause him to go mute.
“I felt his depression was sincere,” said the psychiatrist. “But any reason for not speaking was not because of injury.”
“I don’t care about the reason,” Judge Green said. “Is it medically plausible that being charged caused a medical / psychiatric event?”
The doctor said that could be, but he currently is not speaking. She had labeled Morris incompetent for trial in two reports and was not seeing him now.
The prosecution’s second witness was Dr. Erin Michael Shepherd, consulting neuropsychologist at Walter Reuther Hospital. He said he reviewed Dr. Hill’s reports along with talking to Morris. He said he observed Morris could walk without difficultly and had no external signs of depression. He said he is able to write out things, but did not speak verbally and he did not observe him interacting with any staff.
Dr. Shepherd told of a simple memory test that Morris passed easily the first time and then the second time, after he was charged, he scored very, very low. “He would have to make an effort to go so low,” he said.
He told Judge Green that Morris is likely malingering because there is no disorder to cause him to be mute.
“Depression can cause a person to be mute temporarily, but wouldn’t prevent speaking. There is no physical thing stopping him from speaking,” Dr. Shepherd said.
Judge Green asked if it is plausible that Morris was stable and then was informed there was an accident and he was being held responsible for a death and that impacted him?
“Is it plausible he’s not malingering?” Judge Green asked. “He is criminally charged for a felony and … this triggered something and he is not malingering?”
“It’s highly implausible,” said Dr. Shepherd “We would see other things. He wouldn’t be able to function in his daily life.
“It’s not likely that depression caused mutism,” he said.
Defense attorney Duncan asked if it was possible and Dr. Shepherd conceded it was possible.
Duncan referred to a report that said Morris may not regain cognitive deficits and Dr. Shepherd said his report doesn’t talk about competency. It talks about malingering.
Dr. Shepherd said he had some writings that Morris gave to him, but he did not bring them to court. He said they were childlike and Morris wrote about having lots of toys to play with when he goes home.
“My determination was that he was malingering with the mutism,” Dr. Shepherd said.
Next witness was Bernice Diop, clinical social worker at Walter Reuther. She said Morris communicated to her in writing because his Fund Card was empty and he couldn’t get snacks at the vending machine.
Another written message was presented that said, in part, “Mom’s not coming, is she? How much can I stay here? No robot, no games, cartoons. It sucks here. I hurt no one. I’ve been a good boy. Only crazy people need help. I need mom …”
“He’d rather not be here,” Judge Green said, noting she could understand that.
Diop said staff had observed him on the house telephone to someone else in the hospital. She said he has spoken with his mother on the other phone where people can call in.
Judge Green asked about his education and was told he finished ninth grade and his communication skills were limited, at best.
Dr. H. Gummadi, a psychiatrist to Morris, said Morris is competent to be able to understand the charges and work with the attorney. He said Morris works with staff and other patients. He said he interacts and gets to sessions on time without help.
Duncan asked about the February 2016 report that said “closed injury cognitive deficiency – may not regain competency.”
Dr. Gummadi said he first met with Morris on May 26. The patient was in another psychiatric unit and was transferred into his current unit a wheelchair with a helmet on his head from an altercation and assault by another patient.
He said the medication seems to be working and he communicates by writing, with a lot of misspellings.
“He can assist his attorney in defending himself,” Dr. Gummadi said.
Defense attorney Duncan called his only witness, Dr. George Watson, Jr., a clinical and forensic psychologist hired by the defense for an independent evaluation.
Dr. Watson met with Morris on Jan. 18 and, “My opinion was he was incompetent based on other available documents, plus interactions.”
Dr. Watson said he was required to inform the patient of why he was there and Morris would not read the information, so he read it to him.
“He made no acknowledgement. He nodded … gestures with his hands … gave no meaningful acknowledgement of the notice.”
Dr. Watson said he asked him to fill out a questionnaire and he didn’t. He asked him questions and Morris began to write things in block print that were not responsive to the questions.
Dr. Watson said malingering was defined as a willful presentation of fabricated symptoms of mental or physical disorders for a false result.
“I felt he was genuine,” Dr. Watson said.
He went through Morris’ problems: traumatic brain injury, special ed., ADHD, traumatized as a youth, trauma on top of trauma.
He said he has not heard anything that means Morris’ attention will be up to the task of assisting his attorney. “I didn’t see any evidence of him able to process abstract concepts.”
Prosecutor Cayce said Dr. Watson met with Morris for an hour. Morris talked to his mom by telephone. Being ADHD doesn’t make him incompetent.
“He was out living in the world, driving a car,” Cayce said, noting his problems were laid on pretty thick.
“I didn’t think it was authentic,” Cayce said.
Judge Green said court is not something Morris wants.
“I haven’t been in this position in all these years,” said Judge Green of her required decision, noting if the defendant is not competent the state would arrange a civil commitment. “But the state says he’s competent. If I find him competent, he is taken into custody and goes to trial.”
“He had 14-15 months to regain his competency,” said Prosecutor Cayce. “His mutism is exaggerated.”
“Should he be released tomorrow?” Judge Green asked.
“And be living out in the world?” Cayce asked.
The mother of Marcus McIntosh, the person that died in the crash, told Judge Green that Morris lives near her home and after the accident she watched Morris walk his dog. “I watched him live,” she said.
“There is no evidence that brain injury kept him from talking and walking,” Cayce said.
Duncan said, “He can’t assist me. I can’t do anything with him. I’m helpless if I’m forced to represent an incompetent person.”
Judge Green said the ATM card activities concern her and she’s concerned that people saw him on the phone.
“ON the phone,” Duncan said. “There’s no testimony he was talking.”
Judge Green said she wants to see Morris in her courtroom.
“It’s not fair for me to make a decision …” she said. “I want to see the defendant and see his mother. I apologize to the victim’s family for prolonging this. I would feel more comfortable with the decision. I want to see the defendant and I want to ask the mother a lot of questions.”
She asked the medical witnesses still in the courtroom if there is a daily attendant that she can talk to and they said there is.
“I want the defendant, his mother, and the daily attendant in my courtroom at 10 a.m., Feb. 22, for a competency hearing.”
She asked the victim’s family if that would be too long and the victim’s mother replied, through tears, “It’s been two and a half years.”
VBT Detective Mark Buxton is officer in charge of the case.
If found guilty of the felony charge, Morris could be imprisoned for up to 15 years and/or pay a fine of $2,500 to $10,000.
Morris was released April 24, 2014 after serving three years in prison on a plea bargain to criminal sexual conduct, third degree. He is considered a habitual offender. His release from prison was about three months before the fatal accident.