A day after a judge ordered a mental evaluation for 12-year-old Morgan E. Geyser, one of the suspects accused of nearly stabbing her friend to death in a wooded area in Waukesha, her attorney, Anthony Cotton, filed a motion with the court to stop any such exam.
On Tuesday, Waukesha County Circuit Court Judge Michael Bohren ordered that the mental evaluation be stopped "pending further order of the court."
Cotton said in the motion a mental evaluation is "untimely because the preliminary hearing has not been held."
"Therefore, it has not yet been established that Ms. Geyser is properly subject to the original jurisdiction of adult court," the motion read. "Second, because the focus of an NGI (Not Guilty by Reason of Insanity) evaluation is the defendant's functioning at the time of the alleged crime, the doctor will ask Ms. Geyser questions about the offense.
"This plainly violates Ms. Geyser's Fifth Amendment right to remain silent given that her answers will be turned over to the state."
"Were Ms. Geyser to answer questions differently than she did when questioned by the police (after the alleged crime occurred), those statements could be used as impeachment against her at trial. Or worse, those statements could be used as direct evidence of guilt, by the state calling the court-appointed doctor to testify at a trial."
Cotton also said that no Wisconsin case can be found where a defendant underwent an NGI evaluation before probable cause was even established or where a defendant who has been found incompetent by two doctors is required to participate in an NGI evaluation.
Cotton said in an interview on Monday that "it's not appropriate" for Geyser to be asked about the crime, which he said would happen during the evaluation. He added that a mental evaluation is not appropriate because no insanity plea (an NGI plea) has been made.
"They don't have the right to have (the evaluation) done," Cotton said in an interview on Monday. "They're putting the cart before the horse."
Susan Opper, deputy district attorney, declined to respond to Cotton's motion.
In court on July 1, Opper said she would like to have a mental evaluation done sooner rather than later as the exam determines the suspect's mental status at the time of the crime.
Cotton said the issue of competency needed to be addressed first and that multiple doctors have seen his client.
Geyser was deemed incompetent by two doctors but Opper requested to have a hearing on the competency issue.
"Both doctors concluded to a reasonable degree of medical certainty that Ms. Geyser lacks substantial mental capacity to rationally understand her charge, participate in the court proceedings or communicate with her attorneys in aid of her own defense," Cotton's motion read.
A competency hearing has been scheduled for Aug. 1 at the Waukesha County Courthouse. The doctors who evaluated her for that exam will be questioned by the state.
"I hope the judge agrees with the doctors and hopefully then Morgan can get the treatment in a hospital," Cotton said. "She's being prevented from going to a hospital."
Geyser has been staying at the Washington County Juvenile Detention Center in West Bend since being charged with attempted first-degree intentional homicide for her role in a May 31 attack on a fellow Horning Middle School classmate.
According to the criminal complaint, Geyser and Anissa E. Weier, the other suspect charged in the case, lured their classmate into a wooded area in Waukesha after a birthday party sleepover the previous night and stabbed her 19 times.
They told police they did this to prove themselves worthy of a fictitious Internet character named Slender Man, which they learned about through the Creepypasta website.
The girls are charged as adults and could face up to 65 years in prison. However, the two suspects' attorneys have said their top priority is to have the case moved to juvenile court.