submitted: April 18, 2018
Allison Abessinio, Esquire, Deputy Attorney General, Delaware
Department of Justice, Attorney for the State.
L. Reynolds, Esquire, LAW OFFICES OF DANA L. REYNOLDS, LLC,
Attorney for Defendant.
COMMISSIONER'S DECISION ON DEFENDANT'S
COMPETENCY TO STAND TRIAL
before the Court is the question of Mr. Leatherberry's
competency to stand trial in the Superior Court for the above
captioned criminal cases. Following numerous psychiatric
evaluations and an evidentiary hearing on April 18, 2018, the
issue is now ripe for decision.
and Procedural History
Leatherberry is a young man now 19 years of age. His
life-long struggles are well documented in the medical
records. Briefly, records indicate that he was born full-term
and healthy. However, around the age three, Mr. Leatherberry
suffered a permanent traumatic brain injury ("TBI")
as a result of abuse by his mother's paramour, who also
killed his younger brother in the same incident. Mr.
Leatherberry's behavior deteriorated dramatically
following this abuse and he became problematic both at home
and at school. Mr. Leatherberry suffered from significant
learning and behavioral problems and received special
education services as a student with an intellectual
disability and an emotional disturbance. Mr. Leatherberry
made little progress in school and recent testing indicates
academic achievement at the 2nd to
3rd-grade level. Due to his behavioral
difficulties at home, Mr. Leatherberry now lives under
supervision with Connections Community Support Program in a
group home in Smyrna. Mr. Leatherberry is currently facing
charges in the Superior Court for Theft of a Motor Vehicle,
Conspiracy Second Degree, Attempted Robbery First Degree,
Aggravated Menacing and Carrying a Concealed Deadly Weapon
Leatherberry's legal troubles have been ongoing since the
time of his first arrest as a juvenile in May 2008. Since
that time, Mr. Leatherberry has been evaluated for competency
to stand trial on seven different occasions, most recently on
April 9, 2018, by Abraham J. Mensch, Ph.D. Lane's
troubled history is well-summarized in Dr. Mensch's most
recent report so I will not recapitulate it in great detail
here. Sufficient it to say, Dr. Much has opined that he
believes that Mr. Leatherberry is not competent to stand
trial due to his neurocognitive and neurobehavioral
defects. The State has submitted evaluations from
two different doctors at the Delaware Psychiatric Center
("DPC") who have opined that Mr. Leatherberry,
despite his limitations, is presently competent to stand
Leatherberry's evaluation history can be summarized as
first evaluation was conducted on May 16, 2001, when Mr.
Leatherberry was 12 years old, by Dr. Heather Alford of the
Division of Prevention and Behavioral Health Services
("DPBHS"). Dr. Alford concluded that due to Mr.
Leatherberry 's neurocognitive defects his ability to
understand the proceedings and participate in them was
second evaluation was conducted on September 14, 2015, by Dr.
Ben Lungen, also of DPBHS. Dr. Lungen found Mr. Leatherberry
competent to stand trial, opining that he had a sufficient
factual understanding of the legal process and the charges
against him to assist in his own defense.
third evaluation was conducted on June 10, 2016, by Dr.
Daniel Jones, also of DPBHS. Dr. Jones concluded that,
overall, Mr. Leatherberry demonstrated most of the required
capacities for competency to proceed to trial.
forth evaluation was completed by Dr. Mensch on April 26,
2016. At that time, Dr. Mensch opined that Mr. Leatherberry
"did not evidence the capacities needed for adjudicative
competency." Dr. Mensch completed a re-evaluation of Mr,
Leatherberry on May 5, 2017. In this evaluation, Dr. Mensch
opinioned, again, that although Mr. Leatherberry possessed
some of the competency abilities, he still had significant
impediments to assisting his attorney with his defense.
fifth evaluation was completed at DPC by Douglas S. Roberts,
Psy.D, on October 27, 2017. Dr. Roberts' report starts by
outlining a detailed history of Mr, Leatherberry's legal,
family, traumatic, education, medical and psychiatric
history. Dr. Robert's administered various cognitive
assessments which confirmed that Mr. Leatherberry was
intellectually disabled, although Dr. Roberts' classified
it as "mild." Dr. Roberts utilized the
"McGarry Questions" for purposes of determining Mr.
Leatherberry's understanding of the legal process and
competency to stand trial.Specifically, Dr. Roberts found that (1)
Mr. Leatherberry had an understanding of the charges against
him, (2) Mr. Leatherberry generally understood the possible
penalties associated with the charges against him and also
understood the concept of probation, (3) Mr. Leatherberry
understood that the State would need evidence to convict him,
but doubted that any video evidence would show his face, (4)
Mr, Leatherberry was able to correctly identify and generally
explain the role of the defense attorney, prosecutor, judge,
jury and that he was the defendant, (5) Mr. Leatherberry
understood the concept of a witness and that if a witness
lied on the stand that he could discuss that fact with his
lawyer, (6) Mr. Leatherberry recognized the need to behave in
court and that he could be removed if he failed to do so, (7)
Mr. Leatherberry understood the concept of a plea bargain and
that by pleading guilty he would not have a trial, (8) Mr.
Leatherberry's ability to plan legal strategy was
significantly limited, however, Mr. Leatherberry did
recognize that he could tell the jury he did not do ...