July 23rd, 2014 | by KATE WILLSON News | Posted In: PDX News, Cops and Courts

"Malingering" Defendant Gets Another Competency Review

news1_4025IN HIS OWN DEFENSE: Andrew F. Kowalczyk has been serving time in the Multnomah County Jail while his federal trial on sexual exploitation charges has been delayed more than a dozen times. - IMAGE: Multnomah County Sheriff

A defendant awaiting trial for more than six years on sex abuse charges that could put him away for life will undergo another competency evaluation, a federal judge ruled today.

Andrew Franklin Kowalczyk, 39, has fired nine court-appointed attorneys and had his trial postponed more than a dozen times since being charged in 2008 with sexually abusing three young girls.

Kowalczyk has claimed he suffers from paranoia and is incompetent to stand trial. After a three-month psychological evaluation, government’s psychologist Richard DeMier determined Kowalczyk’s insanity plea “disingenuous” and “contrived.”

U.S. District Judge Michael Mosman today said he believes Kowalczyk understands the charges against him and appears to have exaggerated his symptoms. 

“However, I have serious questions about competency,” he said, and “serious concerns whether Mr. Kowalczyk is merely malingering. I simply find that the question has not been adequately answered.”

Mosman said the evaluation by DeMeir failed to take into consideration a pattern of paranoia dating back to Kowalczyk’s teenage years that might indicate the defendant wasn’t simply manipulating the court to avoid facing a jury.

Nor did Mosman trust the evaluation of Donald True, a Portland clinical psychologist hired by Kowalczyk’s father, which concluded the defendant was unfit. He called the evaluation unreliable and said True had slid into the role of advocate.

Kowalczyk allegedly took images and videos of himself sometime around 2005 raping and sodomizing two toddlers and a third girl who appeared slightly older. He took the images from Oregon into Washington, making it a federal crime. He was eventually charged with nine counts of sexual exploitation of a minor.

Since Kowalczyk’s arrest, nine court-appointed attorneys have asked to be removed from his case. None has raised a concern about Kowalczyk's competency.

“There’s no question that Mr. Kowalczyk has some mental health issues,” Gary Sussman, one of the U.S. attorneys prosecuting the case told the court. “But mental illness doesn’t equate to a present incompetence to sand trial.”

Sussman said two competency evaluations in Washington State found no indication of mental illness. Nine lawyers in Oregon have represented him and none has sid they believed Kowalczyk was unable to aid in his own defense.

That included Noel Grefenson, a lawyer from Salem. He was Kowalczyk’s seventh attorney. By then the trial had been postponed six times. 

Grefenson had worked in criminal defense more than 20 years when he took Kowacyk’s case. He stayed after Kowalczyk threatened to stab him in the eye with a pencil and after he told the lawyer he knew where his family lived and they would never be safe. 

“The degree of my interactions with the defendant far exceeds that of any client that I have represented since joining the bar in 1988,” Grefenson told a judge in 2012. Grefenson also told a judge that year, “I have not seen anything…which leads me to suspect that the defendant is not competent to aid and assist in his own defense."

But Robert W. Reid, an attorney appointed to represent Kowalczyk as amicus counsel told the court that this mental illness wouldn’t be obvious to most people – even to him.

When he met Kowlaczyk, Reid said he had never heard of delusional disorder. So it was easy to assume that Kowalczy was simply “one of the biggest jerks” he had ever met. Grefenson had more patience that he would have had, he told Mosman.

He said there was no question that Kowalczyk “is an unpleasant character who is maladaptive and very, very unpleasant. That’s about the best that can be said about Mr. Kowalczyk’s personality.”

If Mosman was unsure about which evaluation to rely upon, the early signs of mental illness should tip the balance, Reid said.

And it did. 

Mosman ordered Kowalczyk be sent away for evaluation by a different psychologist and scheduled a status conference for November.

 
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