Forensic neuropsychiatric evaluation of competence to stand trial
Case Name: New Hampshire v. Doe

Testimony Date: March 17, 2015; Decided May 18, 2015

Retaining attorney:
Theodore Barnes, Esq.
8 Court Street
Concord, NH 03301
Phone: (603) 225-5663

Retained expert:
Harold J. Bursztajn, M.D.
Associate Clinical Professor and Co-founder, Program in Psychiatry and the Law
Department of Psychiatry, Beth Israel Deaconess Medical Center
Harvard Medical School
96 Larchwood Drive
Cambridge, MA 02138
Phone: 617-492-8366

Doe was facing several charges of assault while incarcerated. He had a long history of mental illness exacerbated by medication noncompliance, together with a history of explosive outbursts, sometimes with delusional content, toward prison staff, mental-health treatment personnel and evaluators, and attorneys. After a state-retained forensic evaluator found Doe competent to stand trial, defense counsel retained Dr. Bursztajn to evaluate his client. Whereas both the expert retained by the prosecution and Doe’s treating clinicians believed that Doe was malingering psychosis to avoid standing trial, Dr. Bursztajn opined that “what appears as malingering may be better understood as stereotypical adaptation by a psychotic individual,” especially one who had shown evidence of delusions at an early age, well before he had reason to malinger for legal purposes (Bursztajn report, p. 5). Dr. Bursztajn explained that “utterances and behavior that appear staged to his treating clinicians may well have taken on a practiced quality by now. That does not, however, make the character he is playing any less a reflection of his underlying mental condition” (p. 5).

At the competency hearing Dr. Bursztajn testified that psychosis and malingering, while typically seen as mutually exclusive, can actually be complementary, in that malingering can serve as an adaptive response to psychosis. He testified, as paraphrased in the court’s decision, that psychotic individuals commonly fake to some degree as “a form of self-protection, to avoid the shame of confronting their mental illness. Dr. Bursztajn agreed that Mr. Doe feigns at times, but there are also times when he genuinely loses touch with reality” (Order, p. 11). Consistent with this testimony, the court found that Doe lacked sufficient present ability to consult with and assist his attorney with a reasonable degree of rational understanding, and therefore was not competent to stand trial. If he cannot be restored to competence, Doe is likely (subject to a dangerousness hearing) to be transferred out of the prison system to a state psychiatric hospital.