As much as it may be outrageous, it’s so outrageous that it kinda brings a weird smile to your face, a shake of the head, and, to the most cynical among us, a sigh. Give former Loudoun County sheriff’s deputy Frank Pearson credit for chutzpah.
The former Loudoun County sheriff’s deputy charged with stealing more than $200,000 from the office’s asset forfeiture program has an unusual reason that federal prosecutors might not be able to put him on trial.
He has a 12- or 14-year gap in his memory.
Oh, come on. If you’re not smiling now, you’re not human.
Defense attorneys said that after Pearson’s wife found him unresponsive on the bathroom floor of the family’s home in October 2013 and had him taken to a hospital, Pearson said that it was 2001 and that he did not recognize friends whom he had met after that year.
As for the money stolen from 2010 to 2013, he had nothing.
Prosecutors said that Pearson professed “not to recognize either of his now grown children” and that they had “deep skepticism” about his claim. Defense attorneys wrote that there was “probable cause to believe that Mr. Pearson is suffering from a mental disease or defect rendering him unable to properly assist in his defense.”
There’s no shortage of evidence against Pearson, with witnesses who watched him carry out boxes of cash that somehow managed to find their way into his bank account instead of the Sheriff’s escrow account. Assuming, arguendo, the evidence to bear out, Pearson would be dead meat and face a very stern tongue lashing for his crimes.
But then, if he’s incapable of assisting in his own defense due to a mental disease or defect, well, whatcha gonna do?
When they review documents, for example, Lopez said Pearson claims he cannot recognize them. “He might as well not even be there,” Lopez said. He declined to comment beyond what he said in court and what was in his written filings.
There will, of course, be a psychiatric examination, reluctantly agreed upon by the government. As if there was any other option.
Assistant U.S. Attorney Mark Lytle said in court Friday that prosecutors supported a psychiatric evaluation, but only in an “abundance of caution.” U.S. District Judge T.S. Ellis III seemed skeptical, but noted there was a low threshold Pearson had to meet to get one.
And in the understatement of the decade, prosecutors call Pearson’s amnesia “suspicious”:
Though Pearson said that the memory loss took effect before he was charged, prosecutors suggested that the timing of it was suspicious. It emerged, they said, only after authorities began asking questions of Pearson.
If you aren’t laughing out loud by this point, there’s no hope for you. Find your inner cynic. But then, what if it’s true? Is it not possible that something happened to Pearson, that his memory loss is real and he can’t assist in his own defense? Why do you hate the defense so much?
The question of whether Pearson can maintain his claim under a battery of psychiatric exams and evaluations is more about his tenacity than anything else. As much as psychiatrists believe in the efficacy of their scientific discipline, it largely remains a “soft science,” dependent upon impressions rather than bodily fluids or brain activity.
No doubt psychiatrists and psychologists will dispute this characterization, as nobody wants their bread and butter called voodoo, but the ability to out a liar or malingerer remains largely a product of gut instinct. There are tests that are statistically proven to be capable of telling whether somebody claiming a mental disease or defect is a fraud, but they’re hardly fool-proof.
The government, however, argues that it shouldn’t matter either way.
Prosecutors argued that it did not and that Pearson could still stand trial even if his memory was gone. They wrote in court documents that Pearson’s memory could be refreshed by documents, including Pearson’s e-mails, handwritten logs and financial records that show “the deposit of tens of thousands of dollars in cash into the defendant’s personal bank accounts during the embezzlement scheme, notwithstanding that neither he nor his wife had any source of income that would have generated these cash deposits.”
Eh, not such a good argument. Refreshing recollection only applies if there’s a recollection to refresh. If he’s suffering from amnesia, then there is no recollection, and asking him whether documents refresh his recollection is a charade, a farce, which will serve no purpose. The law does not require a futile effort.
Nor does the possibility of refreshing recollection affect the defendant’s ability to assist in his own defense. This is a constitutional right, and it’s not so easily circumvented. Nor should it be.
But then, does this mean that Pearson, if he is either legitimately suffering from amnesia or extremely good at faking it, walks? Has Pearson found the magic pill that absolves him from culpability for raiding the civil forfeiture coffers by bumping into walls and claiming he can’t recall?
Maybe it does. Maybe the shrinks will shrug, saying “hey, the guy can’t remember shit. What do you want from us?” On the bright side, Pearson still has perfect short term memory, so it’s not like he won’t be able to enjoy his freedom. Who’s still laughing?