Read U.S. District Judge A. Richard Caputo's order and memorandum on former state Sen. Raphael Musto's competency at timesleader.com.
WILKES-BARRE — Former state Sen. Raphael Musto was ruled mentally incompetent to stand trial by U.S. District Court Judge A. Richard Caputo, who ordered him to a hospital for treatment. Caputo issued the ruling late Tuesday afternoon after an all-day hearing on Monday, when physicians testified that Musto is suffering from non-alcoholic cirrhosis of the liver. Musto's trial was scheduled to begin Monday with jury selection on public corruption related offenses. Because Musto is “suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings against him or to assist properly in his defense,” Caputo committed him to the custody of the attorney general. Caputo also ordered that the attorney general have Musto hospitalized “for such a reasonable period of time … as is necessary to determine whether there is a substantial probability that in the foreseeable future he will attain the capacity to permit the trial to proceed.” He limited the hospital stay and evaluation period to not exceed four months. Caputo also ordered the attorney general to report back to him by March 7 and again by May 7 on whether Musto's mental condition has improved to the extent that would allow the trial to proceed. Two experts appointed In a memorandum accompanying his order, Caputo noted that he appointed two experts to aid him in his consideration of Musto's motion for an indefinite postponement of the trial. Dr. K. Rejender Reddy, a liver specialist at the Hospital of the University of Pennsylvania, was asked to determine whether Musto's liver disease rendered him incompetent to go to trial. Dr. Susan E. Rushing, a forensic psychiatrist and assistant professor at the University of Pennsylvania Perelman School of Medicine, was asked to determine if Musto has a mental disease or defect which rendered him incompetent to go to trial. Musto submitted four reports from Dr. Cataldo Doria, a liver disease expert from Jefferson Medical College, and two reports from Dr. Richard Fischbein, a psychiatrist. The government submitted a report by Dr. Ian R. Schreibman, a liver disease expert from Penn State Milton S. Hershey Medical Center. All of the doctors who submitted reports testified at Monday's hearing except for Schreibman. Caputo noted that determination of incompetency to stand trial for physical reasons is at the discretion of the court, while determination of incompetency to stand trial for mental reasons is governed by statute. Physically fit for trial As for Musto's physical condition, Caputo found no evidence that would lead him to determine Musto was physically incompetent to prepare for and go to trial. While Doria and Rushing testified on Monday that Musto's state of mind and ability to concentrate and recall facts could be hampered by rising levels of ammonia in his brain caused by non-alcoholic cirrhosis of the liver, Caputo noted none of the doctors diagnosed encephalopathy — the accumulation of toxins that affect the brain. And while Doria testified that the stress of trial could cause an aneurysm in Musto's thoracic aorta to burst, which could be fatal, Caputo wrote that given the current stability of the aneurysm and “the inability to predict the future,” this condition does not render Musto incompetent to stand trial. Likewise, Caputo determined that neither Musto's fatigue nor constant itching nor weight loss rendered him physically incompetent for trial. He wrote that Musto's liver disease has no cure, “but it is fair to say that the evidence indicates his condition is stable.” The judge also wrote that it is possible to have a nurse or other medical personnel in the courtroom during a trial. “Indeed, a nurse sat with Mr. Musto throughout the duration of the competency hearing.” Caputo also noted that a trial schedule could be fashioned to address “any needs or deficits that Musto has which would be reasonably inconsistent with trial time. In addition, appropriate breaks can be taken as needed and any other reasonable accommodations implemented.” Testimony 'persuasive' As for Musto's mental state, Caputo noted that Rushing and Fischbein both testified that Musto is not mentally competent to stand trial, and that their testimony was “persuasive.” Rushing testified that Musto scored 23 out of 30 on the Montreal Cognitive Assessment and that scores of 26 or less “give rise to concerns of MCI (mild cognitive impairment) or dementia, and both she and Fischbein testified that Musto was not competent because of his MCI. “Although Defense counsel argued at the hearing that Mr. Musto should not be committed to the attorney general in this case because his mental and physical conditions are practically untreatable and are not likely to improve, the court is bound by the mandatory language of (statute),” Caputo wrote. Also in his memorandum, Caputo made clear the importance that the trial should continue if and when possible. “There is a strong public interest in seeing this case prosecuted,” he wrote. “Mr. Musto was a state senator for many years and an acknowledged figure of considerable political power in this region of the Commonwealth of Pennsylvania, if not the entire Commonwealth.” Caputo noted that Musto was charged with “taking a bribe, reward or kickback for political favor. Moreover, he was charged at a time when many local political figures were charged, convicted and sentenced for similar crimes.” “There is a public interest in seeing to it that those charged with crimes characterized as political corruption are tried, and there is surely a public interest in assuring that those with power and influence are governed by the same rules that apply to all,” Caputo wrote.