Mental illness vs. malingering

Michelle ­Dobson

Assistant Criminal ­District Attorney in ­Tarrant County

Sean ­Colston

Assistant Criminal ­District Attorney in ­Tarrant County

How Tarrant County prosecutors overcame the challenge of two competency trials and an insanity defense to secure a murder conviction and 45-year sentence for a wife who killed her estranged husband

Arthur and Colette Reyes were married for more than 20 years. They had two daughters, Naomi and Gabby. In October 2009, Arthur and Gabby moved out of the house in anticipation of an impending divorce. (Naomi was off at college). On Sunday November 22, 2009, Arthur came over to the house to collect some of his more valuable belongings because Colette was going to be served with divorce papers the following week.
    Arthur dropped Gabby off at her best friend’s house nearby and then went to the house to gather items in the garage. After working for about an hour, Arthur called Gabby to come and help him. She arrived minutes later to find her father lying in a pool of blood in the garage. Gabby called 911 while she ran back to her friend’s house and told the 911 call-taker that she believed her mother shot her dad.
     When police arrived on scene, Arthur was dead from an apparent gunshot wound to the head. Colette entered the garage and calmly approached Arthur’s body. When police asked her who shot the victim, she told them, “I did.” When they asked her where the gun was, she said, “I left it next to him.” Colette’s sister and her family were in town visiting from California. They told police that they were inside the house and Colette was in the garage with Arthur when they heard the gunshot.
    Once Colette was taken into custody, she began behaving bizarrely. She mumbled to herself about not knowing what happened. When Detective Ben Lopez tried to go over her Miranda rights with her, she told him she didn’t have any rights, and she wouldn’t answer questions about whether she understood her rights. She also told Detective Lopez her name was Ann Brown (the name of a woman Arthur had met online and whom Colette believed was his girlfriend).
    Colette was taken to the City of Arlington Jail, where she began stripping off her clothes and chant-ing. She spent a little over a week in jail before her defense attorney requested a bond reduction hearing and her bond was lowered. Once she bonded out, she and her defense lawyer immediately gave an interview with the local news. They claimed Colette had been abused by Arthur throughout their marriage.

Our first work on the case
While preparing the case for presentation to the grand jury, we considered possible self-defense claims. Arthur had received a Class C assault by contact ticket in 2007 for slapping Colette. He and Gabby also received assault by contact tickets from an incident on October 17, 2009. But when we spoke to Naomi and Gabby, they told us that their mother had been the abusive one. They said that Colette had fits of rage and became verbally and physically abusive. Gabby explained that October 17, the date she and Arthur got those tickets, was when they moved out of the house. Colette was upset about Arthur’s supposed girlfriend, and she had come into Gabby’s bedroom, pulled out her breasts, and started saying things about Jesus. Gabby and Arthur tried to escort Colette out of the room and Colette started hitting her daughter with a brush.
    The girls told us that they had been told that Colette had been diagnosed with paranoid schizophrenia when they were living in California in the early ’90s. We subpoenaed Colette’s medical records from various doctors in Arlington and found that she was treated for numerous physical ailments, but there was no diagnosis or treatment for paranoid schizophrenia.
    We were continuing to prepare our case when Arlington police made a dramatic discovery. Crime scene officers had collected a cassette recorder containing a cassette tape on the night of the murder. When Detective Lopez listened to the tape, we were all shocked at what he discovered: The murder was captured on tape. Most of the recording contained a conversation between Arthur, Colette, and Colette’s sister. After more than 30 minutes, you could hear Arthur call Gabby and tell her to come to the house and help him. Just a few minutes later, while Arthur was mid-sentence, there came a gunshot followed by items falling. Moments later, Colette’s sister asked her if she dropped something, to which Colette replied, “I just killed him.” Then she said, “He had a gun.” The tape revealed that there was no fight and no self-defense—it was simply a conversation and then a murder.
    We sent the tape to Barry Dickey, a forensic audio-video analyst. He was able to enhance the audio and improve the quality of the tape. He was also able to differentiate the voices, create a transcript, and tell us that based on the sounds and movement on the tape, it appeared that Colette was carrying the tape recorder on her person.
Competency questions
Colette was indicted for the murder of her husband on March 1, 2010. The case went through the normal court process and was finally set for trial. As we approached a trial setting in September 2011, the defense voiced concerns to us about Colette’s competency to stand trial. Because the defense was raising the issue of incompetency, they had the burden to prove it by a preponderance of the evidence. A person is incompetent to stand trial if she does not have sufficient present ability to consult with her lawyer with a reasonable degree of rational understanding or does not have a rational as well as factual understanding of the proceedings against the person.1 Colette’s defense attorney said that he had sent her to a couple of doctors who doubted her competency, and Dr. Barry Norman, a court-appointed psychologist, had conducted a formal evaluation and found her to be incompetent. At that point we did not contest the finding of incompetency but in retrospect, we should have contested it because a competency evaluation is generally a routine exam. But as with all things involving Colette, nothing about this case was routine.
    Dr. Norman conducted a basic competency exam, which consisted of an interview with Colette and a review of some records. Based on his examination, Dr. Norman found Colette incompetent, and she was taken into custody to await transport to the North Texas State Hospital in Vernon. As soon as she was told that she was going into custody, Colette collapsed in the courtroom. She kept her eyes clenched shut and pretended to be unconscious. Medical staff evaluated her, but they did not find anything wrong with her. Colette was transferred to Vernon in November 2011, where she was treated with medication and went through court competency education, stress and anger management, a vocational skills workshop, mental health education, and wellness skills training; she was returned to Tarrant County as competent to stand trial in February 2012. Although released lucid and ready for trial, three hours later at the Tarrant County Jail, Colette was exhibiting signs of the behavior that had landed her in the state hospital to begin with. She was released from custody upon her return to Tarrant County.
    In August 2012, we were ready for trial. About 10 days beforehand the defense, for the first time, stated that it would raise an insanity defense.2 Although this was not timely notice, we felt that the court in its discretion would grant us a continuance and let the defense proceed. Additionally, the defense had Colette examined again and claimed she was once again incompetent. The defense expert, Dr. Emily Fallis, stated that she could not examine Colette for sanity because she felt that the defendant was incompetent.
    This time we weren’t willing to agree. By this point we had subpoenaed a number of Colette’s records, including medical, student, probation (as a condition of bond Colette was required to report to the probation department), and Tarrant County Mental Health and Mental Retardation (MHMR) records. Upon review of them all, we saw a pattern of malingering (feigning or exaggerating symptoms of illness for secondary gain). We believed Colette was trying to abuse the system and continue to avoid trial. We asked the court to appoint an independent doctor to evaluate her, and Dr. Antoinette McGarrahan, a clinical psychologist with specialties in forensic psychology and neuro-psychology, was appointed. Dr. McGarrahan reviewed voluminous records; interviewed family, friends, and neighbors; met with Colette; and conducted objective testing. In her report, she stated that in her opinion, Colette Reyes was malingering to improve her legal situation.
    While Colette was at Vernon, we obtained records from the University of Texas at Arlington where she had been a nursing student until 2008 when she was kicked out. While in the program, several students filed complaints against her because they were afraid of her (though their reasons for feeling that way were not addressed in the records). Records showed that when Colette struggled with a particular class, she would delay taking exams and consistently miss classes due to claimed physical ailments, though she never provided any written documentation of disability to the university.

First competency trial
Our first competency trial was set for jury trial in January 2013. To prepare, we met with Dr. McGarrahan to discuss her findings. Although we had our own expert, given Dr. McGarrahan’s finding, we did not feel the need to use ours at this point. We also spoke to people in contact with Colette in the community. One friend of the family received shopping tips from Colette at the grocery store. Another saw her at the mall, and Colette gave her a discount coupon and invited her to church. Neighbors saw Colette regularly taking out and bringing in her trash and recycle bins. We also spoke to Colette’s bond supervision officer. She was attending meetings, rescheduling meetings, and had even been granted requests to fly out of state to visit family and attend a church camp. None of these people noticed any out-of-the-ordinary behavior. We were ready to call them as witnesses if needed.
     The defense called Dr. Fallis, who testified that in her opinion Colette was incompetent to stand trial. She based her opinion on evaluations by psychologists who had seen Colette, offense reports, and two interviews. Dr. Fallis diagnosed Colette with schizoaffective disorder. Schizoaffective disorder is a mental illness that has features of two different conditions, schizophrenia and an affective mood disorder (either major depression or bipolar disorder). Of the other six doctors who had seen Colette over the past year, three had diagnosed her with paranoid schizophrenia, one with either schizoaffective disorder or paranoid schizophrenia, another with major depression, and one with a cognitive disorder and paranoid schizophrenia. Dr. Fallis testified that she did not believe Colette was malingering based on her behavior during her interviews.
    On cross-examination Dr. Fallis was forced to admit that she had conducted no objective tests to determine if Colette was malingering. In fact, only two doctors who had seen Colette prior to Dr. Fallis had administered any tests to determine malingering, and both indicated less than optimal effort and the possibility of malingering.
    We called Dr. McGarrahan to rebut Dr. Fallis’s testimony. Dr. McGarrahan had conducted a thorough evaluation of the defendant and administered four different tests to detect malingering. She testified that she believed Colette had symptoms of borderline personality disorder but that she did not suffer from severe mental illness. Dr. McGarrahan explained that even though Colette had a master’s degree in engineering, her performance on objective testing was at the level of a moderately mentally retarded person. Also, Colette’s school and medical records contained lots of notes excusing her from schoolwork, and her ability to function in the community was inconsistent with the way she presented to doctors. In fact, there were several occasions in which doctors found that Colette was incompetent, and on the same day she met with her supervision officer or court officials and appeared completely normal. To explain why her opinion was different from a number of other doctors, Dr. McGarrahan testified that once one doctor diagnosed Colette with schizophrenia, the others seemed to rely on prior evaluations.
    It was clear that Colette had some mental issues. Our own expert, Dr. Price, classified Colette’s diagnosis as a borderline personality disorder (BPD). A BPD is a serious pattern of instability in interpersonal relationships, self-image, emotions, and impulsivity. (A more descriptive name for a BPD might be Unstable Personality Disorder.) The meaning of “borderline” in BPD is that it “borders” on other personality disorders as well as several mental disorders, rendering a person with BPD very unpredictable. But BPD is not a mental disorder and would not typically be considered to be a severe mental disease or defect under the Texas insanity standard.
    For the majority of the competency trial, Colette quietly read her Bible or swayed back and forth in her chair. But when Dr. McGarrahan was discussing malingering, Colette yelled out, “I am not faking!” Dr. McGarrahan was then able to explain how Colette’s behavior indicated that she is able to understand what is being said and that her outbursts occur during testimony that is not helpful to her legal situation. During our closing argument, Colette had another outburst, and we were able to argue directly to the jury that Colette understood what was happening.
    At the conclusion of the trial, the jury found Colette competent to stand trial. Unfortunately, we were not scheduled to start trial right away. This meant that Colette would still be out on bond awaiting her next trial date. However, later that same day Colette made threats to harm herself to her supervision officer and the judge held her bond insufficient. Colette would await trial in custody.

The murder trial delayed
We came up for trial again in April 2013. A few days before trial the defense filed a notice of intent to raise the insanity defense. They also raised the issue of competency again, so our trial was going to be delayed. (Although Colette was presumed to be competent based on the outcome of the last trial, the issue of competency can be raised at any time.) This time her defense attorney also produced a motion requesting permission to testify at the competency trial. Out of concern for potential conflict, the judge allowed counsel to withdraw and appointed a new defense attorney for Colette. The new defense attorney promised to get up to speed on the case as quickly as he could, but once again, we were re-set for trial, this time until November 2013—a full two years after Collette’s initial incompetency commitment to Vernon.
    In the meantime, we were finally able to get Colette’s medical records from California. We had attempted to get the records by an out-of-state subpoena, but in citing HIPAA laws, the State of California made it very difficult to obtain the records. They showed that she was hospitalized and diagnosed with paranoid schizophrenia in 1994, but this took place after she exhibited strange behavior upon being caught stealing from her employer.
    Despite getting a new defense attorney, we still expected an insanity defense. Therefore, we obtained a court order and had Colette evaluated by Dr. Randy Price. Dr. Price attempted to interview Colette, but she would not cooperate. When he tried to talk to her, she chanted in a made-up language. As he raised his voice while talking to her, she would get louder as well. Dr. Price reviewed the offense reports, all of our records, and listened to the tape recording of the murder. His conclusion was that Colette was sane at the time of the offense.

A second competency hearing
In November 2013, it was time for trial. The defense raised the issue of incompetency again, so we first had to have another competency hearing. (One more ruling of competency and we would finally be in trial!) We had a visiting judge presiding over the case, and this time the competency trial was to the judge. Once again the defense called Dr. Fallis. As she had previously testified, she said that Colette was not competent to stand trial. The defense also called a nurse practitioner for Tarrant County MHMR who treated Colette in jail. She testified that Colette was prescribed certain psychiatric medications and that there was a noticeable difference in Colette’s appearance and behavior when she was not taking her medications. On cross she testified that in her first meeting with Colette, Colette seemed normal until she identified herself as being with MHMR—then Colette started yelling religious statements and answering questions with a religious theme. She admitted that when Colette is well, she exaggerates her illness to seem more ill than she is and that Colette would act out and refuse medication as her court dates approached.
    The defense’s final witness during competency was Colette’s former defense attorney, Wes Ball. Mr. Ball testified that Colette would not assist him in her defense. He said that when he tried to ask her questions related to the events surrounding Arthur’s death, she would not answer. Mr. Ball testified that Colette would respond only with religious answers. On cross, Mr. Ball admitted that it is possible that Colette had the ability to answer his questions and assist him but was choosing not to take part in her defense.
    For our case, we called Dr. McGarrahan again. Dr. McGarrahan had reviewed Colette’s jail records, listened to testimony of the other witnesses, and met with Colette in the holding cell before trial. Dr. McGarrahan again testified that she did not believe that Colette was suffering from severe mental illness and was malingering. We also called a detention officer from the Tarrant County Jail. She testified that Colette would behave appropriately when being escorted to visit her family and friends or when it was time to order commissary. But when it was time to meet with mental health officials or go to court, she would chant and exhibit bizarre behavior. Finally, we called Dr. Price to describe his meeting with Colette and offer his opinion that she was purposefully choosing not to cooperate with him. At the end of all the evidence, the judge found that Colette was competent to stand trial.

The murder trial (finally)
After this competency hearing, we immediately launched into the trial, with jury selection starting the next morning. We had prepared a special juror questionnaire to address relevant issues in our trial and assist in making strikes. For example, we included questions about divorce, mental health conditions, and if anyone had specialized training in psychology and marital counseling. Because many of Colette’s statements and outbursts were religion-based, we asked how frequently potential jurors attended religious services. We even asked if anyone had ever suspected or caught their spouse having an extra-marital affair (we included a note that they would not be asked about that in court). While some of those questions could potentially inflame prospective jurors, we felt like they were important questions to ask. Asking these questions was very helpful, and we were surprised how much understanding the jury demonstrated about the issues of the case.
    We spent the majority of voir dire discussing mental illness and insanity. It was important for potential jurors to understand that a person can have a mental illness and still not be insane.3 We wanted jurors to realize that people use slang terms like “crazy” and “psycho” to refer to other people all the time, but that doesn’t necessarily make them insane in the legal sense. This was important because in the tape recording of the murder, Arthur referred to Colette a number of times as being “crazy,” “psycho,” and in need of treatment because she was mentally ill.
    The prosecution has the burden to prove beyond a reasonable doubt that the offense was committed, and the defense then has the burden to prove by a preponderance of the evidence that the defendant was insane at the time of the alleged conduct.4 We presented our case in chief as an ordinary murder case and did not address the issue of sanity at this time. We called the officers who arrived at the scene, the crime scene officer, the firearms examiner, the medical examiner, and Detective Lopez.
    We also called the 911 call-taker and played Gabby’s emotional 911 call. Gabby testified about the events surrounding her father’s murder and about life with Colette. She told the jury that Colette had hidden Arthur’s guns from him after he moved out. We also called Arthur’s divorce lawyer to testify that, unaware of Arthur’s death, he filed a petition for divorce on Arthur’s behalf the very day after his murder. Because we suspected the defense was going to argue that Colette’s recording of the murder was not something a sane person would do, we also had him explain that it is not uncommon for parties going through a divorce to record conversations in attempts to gain the upper hand.
    We concluded our case by calling Barry Dickey, our audio-video expert, and playing the tape of the murder. The majority of the tape contained a conversation between Arthur and Colette’s sister. However, when Arthur would complain of Colette’s abusive behavior, Colette could be heard attempting to explain or justify her actions.
    Colette was disruptive multiple times during the trial. When Gabby testified, she yelled at her and called her a liar. On several occasions the disruptions were so loud that the judge had to send the jury out and have the defendant removed from the courtroom. Colette remained in the holdover cell for portions of the trial, but the judge had a speaker placed outside her cell so that she could hear what was taking place in the courtroom.
    The defense began its case by calling one of Colette’s sisters, Marie Cook. She testified that Colette’s family was aware of her mental illness and wanted her to get help, but Arthur would not allow it. On cross, we pointed out that she had seen Colette only a handful of times during her and Arthur’s 22-year marriage and that the couple’s children were probably more aware of what was taking place in the home.
    The defense’s only other witness was Dr. Fallis. On direct, Dr. Fallis testified extensively about her belief that Colette suffered from a severe mental disease or defect at the time of the offense. However, on cross she admitted that she could not testify as to whether Colette knew the difference between right and wrong.
    In rebuttal, we called a few witnesses to testify about Colette’s behavior both before and after the murder. A claims agent for New York Life Insurance Company testified that Colette was the beneficiary of Arthur’s life insurance policy and that just weeks after his death, she attempted to recover death benefits. The paperwork Colette submitted implied that Arthur’s death was an accident. Gabby’s best friend’s mother testified that Colette was very upset about the divorce and was extremely worried about her financial situation. Daughter Naomi testified that her mother was manipulative and controlling. She also described an occasion as a child when Colette dragged her out of the house by her hair because she didn’t want to go to school.
    Our final witness was Dr. Price, who testified that Colette was not insane at the time of the offense. He believed that Colette might have a borderline personality disorder but that she does not suffer from a severe mental disease or defect. Furthermore, in his opinion, Colette knew the difference between right and wrong. Although the defendant would not speak with him about the murder, in his opinion, the tape recording of the offense was the best evidence.
    The jury deliberated for about three hours before finding Colette guilty of murder.
    At the punishment phase, we felt like, from a prosecution standpoint, the jury had already heard everything there was to hear about Colette. However, we did recall Naomi to tell the jury that after the murder, Colette had emptied all of the family’s bank accounts, including her and Gabby’s college funds.
    In punishment, the defense called a couple of doctors who worked for Tarrant County MHMR and had seen Colette while she was on bond and in jail. They testified about Colette’s continued need for medical treatment.
    But the biggest surprise of the trial came when Colette decided to testify. Even on direct, Colette tried to control the direction of her testimony by interjecting her own facts and not answering her lawyer’s questions. We objected many times for nonresponsive answers, which the court sustained. Colette was insistent that she would never hurt Arthur. However, when asked what should happen to her if she did hurt him, her response was, “Death.”
    When it came time to argue, we didn’t ask for a specific sentence. Instead, we told the jury that Colette deserved to spend a lengthy amount of time in prison. The jury deliberated for about an hour and a half before sentencing Colette to 45 years. After all of her attempts to delay justice, she finally had to answer for Arthur’s murder.
    We faced a number of challenges in this prosecution. We made some mistakes along the way, mainly in giving too much weight to the initial assessment of the court’s expert, but in the end successful prosecution came down to our preparation. With mental illness being such a concern in our society and in the criminal justice system, we were pleased that the jury didn’t allow Colette to exaggerate her symptoms of mental illness and that they held her responsible for the murder she committed.

Endnotes

1 Tex. Code Crim. Proc. art. 46B.003.
2 A defendant planning to offer evidence of the insanity defense must file with the court a notice of the defendant’s intention to offer that evidence at least 20 days before the date the case is set for trial. Tex. Code Crim. Proc. art. 46C.051.
3 A person is legally insane if at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong. Tex. Penal Code §8.01.
4 Tex. Code Crim. Proc. art. 46C.153.