The defense counsel of one of the American men accused of the murder of Andre Heckmair claims to suffer from brain damage after a botched escape attempt and told the court yesterday in so many words that he wants the psychologist’s report to thrown out of court.
James Diedericks of Diedericks Inc. told Judge Christi Liebenberg that according to Namibia’s Criminal Procedure Act, only psychiatrists are eligible to report on the ability of an accused person to stand trial. And since Willem Annandale, who compiled a report on Marcus Kevin Thomas’ fitness to stand his trial, is a psychologist and not a psychiatrist, his report cannot be allowed as evidence.
Annandale observed Thomas after the High Court ordered that a new panel to be constituted of a psychiatrist not in the employ of the State and a neuro-psychiatrist assess Thomas afresh after the State disputed the findings of a panel of Namibian mental experts that declared Thomas unfit to stand trial.
The report, commissioned by Dr Frederika Mthoko, said Thomas suffers from a neurocognitive disorder caused by a brain injury he sustained when he fell from a two-metre high fence in an attempt to escape from Windhoek Correctional Facility.
During the escape attempt his foot got ensnared in the wire and he wound up hanging upside down for two hours until he was cut loose and apparently hit his head. Shortly after his fall he instructed his then lawyer, Werner van Rensburg, that he wishes to change his plea to guilty, causing Van Rensburg to question his sanity and request a period of mental observation.
After he was seen by Dr Mthoko and a panel consisting of a psychologist and a behavioural therapist he was declared unfit to stand trial.
The State, represented by Advocate Antonia Verhoef, did not take it lying down and requested that a second round of tests be conducted by independent experts.
Thomas was then seen by three experts, who all agreed that he was malingering – faking his mental defect – and was fit to stand trial.
Clinical psychiatrist Prof Tuviah Zabow and psychiatrist Dr Reinhardt Sieberhagen both declared Thomas fit for trial.
Annandale was then asked to make an assessment of Thomas and he too concluded that Thomas was guilty of malingering.
Annandale strongly disagreed with the findings of the Namibian experts.
“A neuropsychological assessment was never conducted and no mechanisms were employed to control for the obvious risk of malingering,” Annandale noted.
He went on to say a thorough neuropsychological evaluation was later conducted, which found that the seriousness of the cognitive symptoms displayed by Mr Thomas is not remotely in accordance with the perceived seriousness of his possible traumatic brain injury. A pattern of inconsistencies became apparent once the results of the tests were analysed.
It became apparent that the seriousness of the apparent neurocognitive impairments was not remotely in accordance with the expected impairments, associated with an MTBI (mild traumatic brain injury).
Utilising a sophisticated protocol it became abundantly clear that this is a clear case of malingering.
“I am unequivocal that Mr Thomas purposely attempted to distort his test results. Certainly on this assessment and probably on the previous assessments as well,” Annandale stressed.
He concluded there are no grounds to diagnose Thomas with even a mild neurocognitive disorder and added that from a neuropsychological perspective Thomas is certainly fit to stand trial.
Thomas and his co-accused Kevan Townsend are accused of killing Andre Heckmair with a single gunshot in the back of his head on January 7, 2011 in Gusinde Street in Windhoek and robbing him of his cellphone and wallet containing at 100 Swiss Franc.
They also allegedly imported two 9mm pistol barrels without a permit and allegedly possessed a 7.65mm pistol and ammunition without a license.
It is further alleged that the accused removed a notebook from police custody after the police seized it as an exhibit and burned, destroyed, or otherwise disposed of some of the pages in the book.