Case 2:07-cr-20073-CM Document 159 Filed 06/28/10 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS
(Kansas City Docket)

UNITED STATES OF AMERICA )

)
Plaintiff, )
)
v. ) Case No. 07-20124-01-CM
) 07-20073-02-CM
CARRIE MARIE NEIGHBORS, ) 08-20105-02-CM
)
Defendant. )

UNITED STATES’ RESPONSE TO

DEFENDANT’S MOTION TO DISMISS
COUNSEL’S PROFFER ON 08/25/09

Comes now the United States of America, by and through the undersigned Assistant

United States Attorney, and offers the following in response to the Defendant’s Motion to

Dismiss Counsel’s Proffer on 08/25/09.

1. On August 25, 2009, a hearing was conducted by this Court on the

government’s Third Motion for Mental Examination of this defendant in the above-

referenced case. At the hearing, the government presented audio tapes of portions of

several tape recorded conversations between the defendant and her co-defendant, proffers

by both defense counsel and government counsel, and statements by the defendant.

Based upon the evidence presented, the Court determined that there appeared “to be

reasonable cause to believe that the defendant may presently be suffering from a mental

disease or defect rendering her mentally incompetent to the extent that she is unable to

understand the nature and consequences of the proceedings against her or to assist
 Case 2:07-cr-20073-CM Document 159 Filed 06/28/10 Page 2 of 5

properly in her own defense.1 The defendant now requests that comments by her counsel

made at the hearing on August 25 be stricken from the record and for a mistrial.2

2. The United States respectfully submits that the comments of counsel at the

hearing on August 25, 2009, were appropriate and did not violate the defendant’s Sixth

Amendment right to the reasonable assistance of counsel. See Strickland v. Washington,

466 U.S. 668, 689, S. Ct. 2052, 80 L.Ed.2d 674 (1984) (Strong presumption indulged that

counsel’s actions constitute “reasonable professional assistance.”)

The Sixth Amendment, ... did not require that the [defendant’s counsel]
adhere to the defendant’s apparent wish to avoid the competency issue. We
hold that when a lawyer has reason to believe that her client may not be
mentally competent to stand trial, she does not render ineffective assistance
of counsel by making her concerns known to the court.

United States v. Boigegrain, 155 F.3d 1181, 1187 (10th Cir. 1998). “Counsel does not have

to take every position and make every argument that the client requests.” Id. (citation

omitted).

Defense counsel should move for evaluation of the defendant’s competence

to stand trial whenever the defense counsel has a good faith doubt as to the
defendant’s competence. If the client objects to such a motion being made,
counsel may move for evaluation over the client’s objection. In any event,
counsel should make known to the court and to the prosecutor those facts
known to counsel which raise the good faith doubt of competence.

Id. at 1188 quoting ABA Standards for Criminal Justice, Standard 7-4.2(c) (emphasis in

original).

1
On December 7, 2009, after receiving and reviewing the mental evaluation report
concerning the defendant’s competency, the Court determined that the defendant was
competent to stand trial.
2
Because there has been no trial of any of the above-referenced cases, the
government will address only the defendant’s motion to strike her counsel’s statements
from the record because a motion for mistrial is not timely filed.

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“Furthermore, considering the seriousness of the offense with which the defendant

is charged, ... there was no conflict between the defense counsel’s duty to serve his client’s

best interest and to raise the competency issue. Both duties required him to raise the

competency issue with the court.” Id at. 1189. This principle is consistent with Kansas

Rules of Professional Conduct 1.14, Client with diminished Capacity, which provides in

pertinent part:

(c) Information relating to the representation of a client with diminished

capacity is protected by Rule 1.6. When taking protective action pursuant to
paragraph (b), the lawyer is impliedly authorized under rule 1.6(a) to reveal
information about the client, but only to the extent reasonably necessary to
protect the client’s interests.

Id.

It is clear from established Tenth Circuit case law and the codes of professional

conduct of both the American Bar Association and the Kansas Supreme Court that the

statements of counsel at the August 25, 2009, hearing on the government’s Third Motion

for Mental Examination of this defendant were appropriate. Counsel acted within accepted

ethical boundaries, acted in the best interests of his client and revealed only as much

information as was necessary to candidly address to the issues at hand. Counsel’s

statements formed at least a part of the Court’s basis for granting the government’s motion

and should remain part of the official court record for future reference should the need

arise. Additionally, the government does not intend to refer to those statements during the

trial of any of the cases now pending against this defendant and would only do so after an

issue has been injected into the proceedings by the defendant and only after counsel from

the government has received leave of court to refer to counsel’s statements.

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Based on the foregoing discussion, the United States respectfully requests that

defendant’s motion to strike counsel’s proffer from the record be denied.

Respectfully submitted,

LANNY D. WELCH
United States Attorney

s/ Marietta Parker, KS Dist. Ct. #77807

MARIETTA PARKER
First Assistant United States Attorney
500 State Avenue; Suite 360
Kansas City, Kansas 66101
Telephone: 913-551-6730
Facsimile: 913-551-6541
E-mail: marietta.parker@usdoj.gov
ELECTRONICALLY FILED
Attorneys for Plaintiff

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Certificate of Service

I hereby certify that on the 28th day June, 2010, the foregoing was electronically filed

with the clerk of the court by using the CM/ECF system which will send a notice of

electronic filing to the following:

John Duma
303 E. Poplar
Olathe, KS 66061
Stand-by Attorney for Defendant Carrie Marie Neighbors

Cheryl A. Pilate
Morgan Pilate LLC
142 N. Cherry
Olathe, KS 66061
Attorney for Defendant Guy Madison Neighbors

I further certify that on this date the foregoing document and the notice of electronic

filing were mailed by first-class mail to the following non-CM/ECF participants:

Carrie Marie Neighbors

1104 Andover
Lawrence, Kansas
Defendant, pro se

s/ Marietta Parker, KS Dist. Ct. #77807

MARIETTA PARKER
First Assistant United States Attorney