The Trouble Disputing “I Can’t Recall”

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?


20 thoughts on “The Trouble Disputing “I Can’t Recall”

  1. LTMG

    I imagine that the prosecutors could do this and that to encourage Pearson to consume most or all of the $200,000 on legal and medical expenses. No gain for Pearson. No money, no job, likely unemployable.

    1. SHG Post author

      He’s past the point where there’s any hope he’s keeping the loot. Whether he’s employable going forward depends on some factors that are unknown, but certainly not as a cop (except maybe in Cleveland). But given his entrepreneurial spirit, I wouldn’t count him out yet.

  2. Keith

    Perhaps he can eventually get Vincent Gigante’s old cell.

    Does the regular statute of limitations still apply if they find he was faking it or gets his memory back?

      1. John

        So I can start faking it now – what if someone hasn’t been indicted? Can I wander around in a daze for a couple of years to avoid accountability for my (purely hypothetical) crime(s)?

        Feel free to bill me for the legal advice, but remember (as I won’t, wink, wink, nudge) that I’m an invalid who can’t pay bills.

        On a serious note, has this ever actually been tried?

  3. Patrick Maupin

    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.

    Quite. And he could expend a lot of money and effort and get really close to the goal and then throw it all away with a single unthinking mistake. Is it merely a negotiating tactic? Is he going to go all the way to trial? Judge or jury? Stay tuned for the next episode of “Hand him an iPhone and see what he does with it.”

    This sort of thing always reminds me of Reno 911’s spoof called the funniest DUI test ever.

  4. George

    The relevant question is this: if he comes out of it and wakes up to what he did, will he try to arrest himself?

  5. John S.

    I’d be curious to know how his brothers in blue are feeling about this one. On the one hand, I imagine they’re feverishly yelling over at PoliceOne about how this is a hatchet job on a poor amnesiac red blooded american ($5 says at least one of them describes Frank as “salt of the earth”) being unfairly targetted by anti-cop prosecutors. On the other hand…. no, just the one hand for this one.

  6. Fubar

    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.

    Modern science explains these results,
    using methods once thought to be cults.
    I can find in one session
    of past life regression,
    that he reincarnates Sergeant Schultz!

    1. Boffin

      Of course Schultz is the real villain in that show. The rest of the nazis are run-of-the-mill sociopaths and bureaucrats and would have gotten nowhere without the average German deciding to see nothing.

  7. Marc R

    It’s cute coverage but nothing new other than who the defendant is. How many clients say someone must’ve slipped something in their drink and they don’t remember or the cops hit their hit arresting them and now they have amnesia. Just like a regular defense it’s up to the jury except your client generally must testify for this to work and they have to pass the laugh test while the prosecutor goads them with evidence. Unless the jury is home court for the police, or that jurisdiction doesn’t allow the jury to make the call on whether they knew what they were doing, I don’t see it as that big a deal. The farce must convince the fact finder as it’s an affirmative defense of “yes maybe I did it but…”

    1. SHG Post author

      You’ve missed the point of the defense’s argument, that the defendant can’t assist in his own defense, so it never gets to the jury.

      1. Marc R

        If it’s at the point of not being able to assist his defense, usually those defendants are in custody; but I guess here he’s fine it’s just that decade memory gap. I don’t see how if he’s fine now, the prosecutor’s idea of “refreshing recollection” is dumb. The experience isn’t gone per se; amnesia makes the memory gone. It’s like any other case of incompetency like James Holmes where the prosecutor can have the state “work” on the defendant until they prepare.

        Not recalling a crime isn’t the same as not being able to assist the defense. The lawyer can show him the discovery, ask questions during deposition of the genesis of the discovery materials, and prepare for trial. Maybe the south does things differently.

        1. Patrick Maupin

          Not recalling a crime isn’t the same as not being able to assist the defense.

          That explains a lot. I always wondered how some innocent people manage to get acquitted occasionally.

  8. Dragoness Eclectic

    I wonder why he was unresponsive on the floor. Suicide attempt? Diabetic coma? There are things that can cause you to be found unresponsive on the floor that cause permanent brain damage. His amnesia may well be genuine.

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