COMMONWEALTH vs. NANCY ADKINSON.

HANLON, J. Along with her husband, the defendant was convicted of sexual abuse of her four minor sons and related drug offenses after a joint jury-waived trial in 1997. [Note 1] In 2002, she filed a motion for a new trial, arguing that battered woman syndrome had rendered her incompetent to stand trial, and thus

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she suffered a violation of her constitutional right to due process. [Note 2] A judge other than the trial judge was assigned to hear the motion for a new trial. [Note 3] After reviewing the motion and supporting materials and conducting a three-day evidentiary hearing, the motion judge denied the motion. [Note 4] We reverse.

Facts. The facts found by the motion judge are substantially supported by the information and materials that were before him at the hearing; we supplement with uncontested material facts from the record in order to provide context. See, e.g., Commonwealth v. Robinson, 449 Mass. 1 , 5 (2007). The motion judge found that the defendant "experienced physical and emotional abuse from [her husband, Corby Adkinson] throughout their lives together in Lowell. Corby . . . would beat or threaten to beat [the defendant] on a periodic basis causing her black eyes, bloody lips and other injuries. After nearly every one of his beatings, he would apologize and promise that he would never do that again. He would tell her how much he loved her, only to repeat later the same cycle of violence. Corby . . . was a 'control freak,' who wanted to know where [the defendant] was and who she was with at all times." [Note 5]

The charged crimes involving the defendant's sons, aged

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approximately eight to eleven, occurred between May, 1995, and November 23, 1995. Commonwealth v. Adkinson, 442 Mass. 410 , 411 (2004). During that time, Corby sexually abused and raped each boy repeatedly and, according to the defendant, forced her participation as well. The defendant's affidavit states, "He threatened to hurt me unless I participated in this sexual abuse. He constantly carried a large knife (the knife which was introduced into evidence by the prosecution at my trial), and he often used it to threaten and intimidate me." [Note 6] At some point in

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1995, Corby apparently convinced the defendant and the children that the defendant's ex-husband, Kenny Bock, was living under the floor boards in the attic and doing terrible things to them. He also convinced the defendant that Bock had been drugging the children. In fact, according to the defendant and her youngest son, Corby was using cocaine and administering it to her and to their children.

On November 23, 1995, Thanksgiving Day, one of the boys telephoned 911 and asked for help. The police responded; the children and the defendant were taken to Lowell General Hospital, where all four children tested positive for cocaine. The Department of Social Services [Note 7] (DSS) took emergency custody of all four children.

Thereafter, between Thanksgiving and December 23, 1995, according to the defendant's affidavit and testimony at the motion hearing, Corby repeatedly instructed her on what she was to say to DSS with respect to the pending care and protection proceeding; when he thought that she disobeyed him, he beat her. On December 22, 1995, when Corby was rehearsing with the defendant what to say, he put a knife to her throat and threatened to kill her if she told anyone what had happened to their children. Afterwards, the defendant broke free and tried to escape, pushing a television out the window and then jumping through the window in a nightgown and bare feet. Eventually the police were called to the scene and the defendant was transported to a hospital. She told the hospital staff that Corby had put a knife to her throat, that he was molesting their children, and that he was drugging "us." Several hours later, on December 23, 1995, she was transferred to the Solomon Mental Health Center (Solomon) for a psychiatric evaluation. [Note 8] There, she repeated the allegations of abuse that she and her children had endured.

Two days later, on Christmas Day, Corby's lawyer, Edward J. Moloney, Sr., went to Solomon and spoke to the defendant. He

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told her that if she continued to talk as she had done to the Lowell police and the staff at Solomon, she would never get custody of her children back from DSS. Corby also visited the defendant at Solomon. Thereafter, the defendant told the staff that Corby was a good husband and father. On December 29, 1995, she was released from Solomon and she returned to live with Corby.

The defendant and her husband were arrested by the Lowell police and charged with the offenses against their children on January 17, 1996. The defendant was interviewed separately; after waiving her Miranda rights, she signed a detailed, four-page, typed statement disclosing sexual and drug abuse in the Adkinson family with explicit examples. She also described Corby's extensive physical abuse of all the children and of her.

The next day, the defendant was transported to Lowell Division of the District Court Department, and Corby was among the other prisoners in the transport wagon. On the ride, he angrily warned her to "get [her] f-ing act together" and "get [her] story straight." [Note 9] Attorney Douglas A. Parigian was assigned to represent the defendant at her arraignment on January 18, 1996. Corby was represented by Attorney Moloney. Thereafter, the defendant was held without bail at the Massachusetts Correctional Institution at Framingham (MCI Framingham), and Corby was held in the Cambridge jail.

The following day, January 19, 1996, Parigian met with his client at MCI Framingham, and spoke to her in detail. According to Parigian's affidavit, the defendant described "a long history of physical and emotional abuse which she had suffered from her husband." She told Parigian that "her husband limited the people she was allowed to speak with and did not allow her to have friends of her own." She also said "she felt threatened by her husband."

The motion judge credited Parigian's statement in his affidavit that, based on these discussions with his client and his review of her four-page statement given to the Lowell police, he "began to explore a possible defense to the charges based on duress supported by Battered Women's Syndrome -- namely

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that her criminal acts against her children had been forced upon her by her battering husband" and that he so informed the defendant at their January 19, 1996, meeting.

Although the motion judge did not make any specific findings regarding what occurred between January 18, 1996, the defendant's arraignment date, and February 22, 1996, when Parigian was replaced with another attorney, the following additional facts were adduced at the hearing and were not disputed. At some point on the District Court arraignment date, the defendant and Corby were lodged in adjacent holding cells. Parigian met with the defendant in the holding cell and began to discuss with her his recommendation that the cases be severed. Corby told Parigian that the cases would not be severed, and later that day, while they were still in the court house, he told the defendant to get a new lawyer.

Three days later, on January 21, 1996, Corby's mother, Margaret Adkinson (Margaret), and Corby's attorney, Moloney, visited the defendant at MCI Framingham. [Note 10] Margaret told the defendant she could trust Moloney, and she provided MCI Framingham, with the necessary documents that would permit the couple to correspond, contact that was usually prohibited between prisoners. Margaret also instructed the defendant to place her, Margaret's, telephone number on the list of numbers that the defendant was permitted to call. The defendant was instructed by Margaret, and by Corby in his letters, to call Margaret daily. (Corby wrote, e.g., "I want you to call everyday," and, "[C]all mom everyday till sentencing"). [Note 11] In these conversations with the defendant, which continued until the trial date, Margaret relayed to the defendant what Corby wanted her to do. Corby sent letters almost daily to the defendant, repeating

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or making additional demands of her regarding specific communications she should have with various lawyers and others.

On January 30, 1996, Moloney wrote a letter to the defendant stating that he could not represent both her and Corby "[b]ecause of a possible conflict of interest"; he directed her to contact her attorney, Parigian, if she had any further questions. [Note 12] Corby immediately instructed the defendant to write to Moloney. Shortly thereafter, as the motion judge found, the defendant "wrote a one page letter dated February 3, 1996 to Mr. Moloney, indicating . . . that her four page statement to the Lowell Police is 'false,' 'is not my statement,' and that 'the Lowell Police lied to me.' " In that letter, the defendant also told Moloney she "would like [a] Unified Defense and Coed defendants [sic], so [the two] lawyers can work together and so Corby and I can be together to prepare our Defense."

About two weeks later, on February 13, 1996, Parigian again met with the defendant and discussed her desire to present a "unified defense" with her husband. According to the motion judge's findings, the unified defense was that the "sexual allegations were the result of suggestive interviewing on the part of DSS, and/or that [the defendant's] first husband, Kenny Boc[k], was responsible." See Commonwealth v. Adkinson, 442 Mass. at 412-413 (defendant and codefendant pursued a "unified defense"). The defendant even provided Parigian with a copy of the decision in Perkins v. Wagner, 513 F. Supp. 904 (E.D. Pa. 1981), a case involving a request for visitation rights so that a husband and wife could prepare a coordinated defense. Parigian advised the defendant against this approach and explained that the Bruton case [Note 13] would likely prevent a joint trial and that her "own battered woman" defense was separate from any defense Corby might have. Within a day of this meeting, Corby orchestrated the retention of new counsel for the defendant. He contacted Attorney Albert Bielitz, arranged for him to represent the

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defendant in Superior Court, and arranged for payment of his fee. [Note 14]

Thereafter, on February 22, 2006, Parigian, unaware that Corby had arranged a change in counsel, was present at the defendant's Superior Court arraignment, expecting to represent her. Bielitz was also present. According to the defendant, while she was waiting in the courtroom, Corby told her that he had hired Bielitz to represent her and that she should fire Parigian. Thereafter, the defendant was arraigned, and Bielitz entered an appearance on her behalf. The same day Corby wrote a letter to Bielitz stating, "We will definitely want to be tried together and we want court ordered visits as soon as possible which will include jail visits and holding cell visits before and after court. [The defendant], me, you, and Mr. Murphy must also get together at visit[s] to discuss this." This letter was admitted in evidence at the hearing.

After the arraignment, Bielitz had "at best three or four meetings" alone with the defendant. At Corby's request, Bielitz filed motions with the trial court renewing the request to permit written communications between the defendant and Corby and to arrange for her to be brought to the Cambridge jail for conferences with Corby, Bielitz, and Murphy to prepare a "unified defense." The requests were allowed.

As the motion judge found, however, Bielitz was also of the belief that the two cases should be severed and tried separately, rather than presenting a joint trial with a unified defense. [Note 15] Yet,

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as Bielitz explained at the hearing on the motion for a new trial, "[E]very time I brought up anything other than [the defendant] and Corby going to trial together, Corby went crazy."

For example, after one meeting in which Corby became particularly upset and almost violent, he wrote to Bielitz immediately afterwards, questioning his advice. [Note 16] On another occasion, when the parties were in court on September 19, 1996, for a motion related to obtaining expert funds, a similar event occurred. Bielitz was approached in the courthouse by the prosecutor who was handling the Commonwealth's case. The prosecutor suggested that the Commonwealth would consider recommending a sentence of credit for time served and straight probation on a guilty plea, in exchange for the defendant's testimony against her husband. Bielitz conveyed this offer to the defendant, while she was in lockup, and strongly urged her to consider it. When Corby was being taken out of the courthouse to be transported back to jail, having apparently either overheard or been informed about the offer, he began yelling at Bielitz, "there [are] to be no [plea] discussions." According to Bielitz, a court officer had to push Corby away from the lawyer and into the elevator that would bring him to the transportation area. The defendant then told Bielitz that she did not want to hear anything about a plea.

Within the next few days, Corby and the defendant instituted a rule that no lawyer in the case was to meet with his client separately and that all meetings required the attendance of Corby and the defendant and the two lawyers. See Commonwealth v. Adkinson, 442 Mass. at 412 (both counsel had been instructed by their clients that no client meeting was to take place unless

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both clients were present). Bielitz and Murphy referred to this requirement as "Corby's rule." The motion judge found that the rule was written and signed by both Corby and the defendant and given to both lawyers. [Note 17] The motion judge found that Bielitz was thus "prohibited from speaking privately with his client and never again met privately with her right through to the delivery of the guilty verdicts by the Court." [Note 18]

Shortly before trial began, at the attorneys' request, Corby and the defendant each signed a statement to the effect that they had been advised on numerous occasions by their respective attorneys that "we should not be tried together. We have both decided we wish to present a unified defense and be tried together." Bielitz testified that during the trial Corby was in "[t]otal control," and the defendant just "sat there."

During the trial itself, on the ninth day, the judge apparently became concerned about whether the defense had considered severance. [Note 19] Both defense lawyers affirmed that their respective clients wanted to proceed with a unified defense. Similar concerns were raised at the sentencing hearing. As the motion judge found, Bielitz sought permission from the defendant to be able to argue at sentencing how much she had been abused by her husband and constrained or coerced by him to commit the acts that formed the basis for the guilty verdicts. After a discussion at which Bielitz, Murphy, Corby, and the defendant were present, it was decided that Murphy would represent both Corby and the defendant at sentencing and that Bielitz would not address the

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judge at the defendant's sentencing hearing. The trial judge questioned the defendant regarding this decision, but eventually acceded to her request to be represented by her husband's lawyer. No mitigating factors related to the defendant's long history of abuse were presented, and the trial judge sentenced her to from thirty-five to forty years.

Expert testimony. In support of her motion for a new trial, the defendant presented the testimony of three experts, psychologists Robert H. Joss and Carol Ball and a licensed clinical social worker, Mary Jo Haggerty. Haggerty and Dr. Joss had both met with the defendant before the trial on the underlying criminal case, and Dr. Ball conducted an evaluation two years later, in 1998, in preparation for providing psychiatric evidence in the children's care and protection proceeding. [Note 20]

Dr. Joss testified that he was a "designated forensic psychologist . . . and a forensic mental health supervisor to the Department of Mental Health." [Note 21] He was initially asked to evaluate the defendant on the issue of her "suggestibility" with a view to arguing that her postarrest statement to the Lowell police should be suppressed. [Note 22] At that time, he did not have a serious question about her competency. However, when informed of all of the circumstances of this case, including the procedural history, particularly the rule against private consultation with the lawyers, Dr. Joss came to the opinion that the defendant suffered from battered woman syndrome and that "it would have made her incompetent to make the decision to separate the trials." He further opined that, "given the way that her husband structured things," she would not have been able to "decide what was best

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for her in terms of the case and approach the case to find a solution to her own legal problem." He also explained that the psychological testing conducted by Dr. Ball confirmed his view, in that the testing showed "evidence of anxiety disorder, bipolar disorder, and posttraumatic stress."

The motion judge, with little explanation, found that Dr. Joss's testimony was not credible and not reliable under the Daubert-Lanigan standard, [Note 23] despite the fact that no one had raised that issue at the hearing. In his view, "the examination for competenc[y] or incompetency is a lot more sophisticated with regards to examinations and interviews than has been exhibited by Dr. Joss."

Mary Jo Haggerty testified that she was a licensed social worker with a master's degree in clinical social work. She saw the defendant for counselling briefly in the fall of 1995 and also saw both Adkinsons for three sessions of couple's counselling. The individual counselling was terminated after about a month when Corby called and told Haggerty that "[the defendant] no longer needed to be in therapy." [Note 24] It was Haggerty's impression at the time that "basically [the defendant] was in a situation of being an abused woman. Corby was very controlling, very manipulative, very intimidating. He was a huge guy." Finally, Haggerty testified that in thirty years of practice she had never seen a controlling relationship that reached the level she saw between the defendant and Corby.

Dr. Carol Ball testified that she has a Ph.D in psychology. [Note 25] She had worked with battered women in the past, although her primary expertise was in working with sexual offenders and sexual violence. She evaluated the defendant in 1998 at the

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request of her attorney for the care and protection proceeding on the issue of terminating the defendant's parental rights. The defendant's test results from 1998 showed that, at the time of the testing, "this woman was experiencing a severe mental disorder. The profile suggests a Bipolar Disorder, Generalized Anxiety and Posttraumatic Stress Disorder. . . . [S]he shows an indication of Dependent Personality Disorder and Depressive Personality Traits. . . . The evidence is overwhelmingly in support of the diagnosis of Battered Women's Syndrome accounting for [the defendant's] inability to protect herself and her children. . . . The pattern of violence towards [the defendant] and the children is quite clear in this case, and is substantiated by her children's reports."

The motion judge found that neither Ball nor Haggerty addressed the issue of competency. Although each expert testified to significant issues concerning the defendant's competency, the judge did not consider any of the testimony in ruling on the motion, concluding, instead, that "[n]o reliable or credible expert testimony has been offered to support her claimed incompetency."

At the conclusion of the hearing, the judge denied the motion for a new trial in a written memorandum. He ruled that a competency hearing was not required at the time of trial because competency had never been raised as an issue before or during the trial and because the defendant demonstrated an understanding of the proceedings and an ability to consult with counsel, as evidenced by her jury waiver. The judge also rejected the defendant's substantive claim that she was not competent to stand trial or to be sentenced.

The judge based his ruling that a competency hearing was not required on two grounds. First, he noted that the issue of the defendant's competency was "never . . . raised by anyone" throughout the trial and pretrial proceedings and that there had been no suggestion during the three-week trial that the defendant was incompetent. Second, he reviewed the jury waiver colloquy conducted by the trial judge with the defendant and concluded that the defendant answered all of the questions in an appropriate and responsive manner. The judge reasoned that, because "[t]he standard that applies in deciding whether a defendant is competent to stand trial is the same as that which applies

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in determining an effective jury waiver," citing Ciummei v. Commonwealth, 378 Mass. 504 , 514 (1979), the judge's acceptance of her jury waiver demonstrated her competency.

Further, according to the motion judge, the defendant's predominant concern was to regain the custody of her children. The judge found that "[i]t was all or nothing, namely, she had to go to trial and hope that she received not guilty verdicts." He continued, "Just because [her trial strategy was unsuccessful and] she lost with the fact finder does not mean that she was incompetent."

Discussion. On appeal, the defendant argues that her rights were violated by reason of a failure to conduct a timely competency hearing before or during the trial. [Note 26] She also argues that the evidence demonstrated that she was incompetent to assist in her defense, because she suffered from battered woman syndrome as the result of abuse inflicted upon her by her husband, the codefendant, and that the motion judge's conclusion to the contrary was wrong. [Note 27]

"It has long been the law of this Commonwealth that the 'trial, conviction or sentencing of a person charged with a criminal offence while he is legally incompetent violates his constitutional rights of due process' . . . , whether under the Fourteenth Amendment to the Constitution of the United States or under art. 12 of the Declaration of Rights of the Constitution of this Commonwealth." Commonwealth v. Hill, 375 Mass. 50 , 51 52 (1978), quoting from Commonwealth v. Vailes, 360 Mass. 522 , 524 (1971). "The test for competenc[y to stand trial] is

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uncontroversial; the accused, before and during the trial, must have 'sufficient present ability to consult with [her] lawyer with a reasonable degree of rational understanding' and must possess 'a rational as well as factual understanding of the proceedings against [her].' " Pike v. Guarino, 492 F.3d 61, 75 (1st Cir. 2007), cert. denied sub nom. Pike v. Bissonette, 552 U.S. 1066 (2007), quoting from Dusky v. United States, 362 U.S. 402, 402 (1960). Both prongs of this test must be met if a defendant is to be found competent to stand trial. See, e.g., Dusky v. United States, 362 U.S. at 402; Commonwealth v. Goodreau, 442 Mass. 341 , 350-351 (2004). "In those situations where there exists doubt as to whether the defendant satisfies [the Dusky] test [of competence], the judge must, on his own initiative, conduct a full hearing on the issue. Pate v. Robinson, 383 U.S. 375[, 385 (1966)]." Commonwealth v. Hill, 375 Mass. at 54, quoting from Commonwealth v. Vailes, supra. "This doubt which necessitates a hearing has been more fully described as 'a substantial question of possible doubt.' " Commonwealth v. Hill, supra, quoting from Rhay v. White, 385 F.2d 883, 886 (9th Cir. 1967). Failure to make an inquiry in these circumstances risks convicting an incompetent defendant; thus, omitting such an inquiry where a substantial question of possible doubt exists constitutes a deprivation of the defendant's constitutional right to a fair trial and requires a new trial. See, e.g., Commonwealth v. Robbins, 431 Mass. 442 , 447 (2000); Commonwealth v. A.B., 72 Mass. App. Ct. 10 , 15 (2008).

We review the judge's decision "to determine whether there has been a significant error of law or other abuse of discretion." Commonwealth v. Grace, 397 Mass. 303 , 307 (1986). In the case before us, the motion judge was not the trial judge. Therefore, "deference is owed only to the motion judge's assessment of the credibility of witnesses [at the hearing on the new trial motion]; [the appellate] court is in 'as good a position as the motion judge to assess the trial record.' " Commonwealth v. Phinney, 446 Mass. 155 , 158 (2006), quoting from Commonwealth v. LeFave, 430 Mass. 169 , 176 (1999). See Commonwealth v. Grace, supra. In addition, "[w]hen a new trial claim is constitutionally based, as in the instant case[], 'this court will exercise its own judgment on the ultimate factual as well as legal conclusions.' " Commonwealth v. Healy, 438 Mass. 672 ,

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678 (2003), quoting from Commonwealth v. Salvati, 420 Mass. 499 , 500 (1995).

The judge's decision that a competency hearing was not required in this case turns exclusively on the defendant's behavior during trial. While a defendant's demeanor at trial and in response to questioning by the judge "might be relevant to the ultimate decision as to [her competency]," decisional law has made clear that "it cannot be relied upon to dispense with a hearing on that very issue." Pate v. Robinson, 383 U.S. at 386. See Commonwealth v. Hill, 375 Mass. at 58 (while "[w]e recognize that the defendant's demeanor at trial and response to questioning by the judge were apparently not unusual . . . [and are] certainly relevant to a decision on the merits of the competency issue, [this] cannot be treated as dispositive of the question whether a hearing should be held on that issue").

Similarly, the judge's reliance on the fact that "competency to stand trial" was not an issue in the record of the trial or pretrial proceedings is misplaced, at least on the facts of this case. "Inquiry into the defendant's claim of incompetenc[y] should not be easily foreclosed on the ground of waiver, since 'it is contradictory to argue that a defendant may be incompetent, and yet knowingly or intelligently "waive" his right to have the court determine his capacity to stand trial.' Pate v. Robinson, 383 U.S. [at 384]. In his dissenting opinion in the same case, Mr. Justice Harlan said, at 388, that if there were error at the trial level on the question of the defendant's competenc[y] to stand trial, 'such an error is not "waived" by failure to raise it . . . . Waiver is not an apposite concept where we premise a defendant so deranged that he cannot oversee his lawyers.' " Commonwealth v. Hill, 375 Mass. at 53-54.

Equally significant is the fact that the judge's findings relate solely to that prong of the competency test that the defendant concedes has been established, namely, that she had a rational and factual understanding of the proceedings against her. Our review cannot be so constrained; the other prong of the test requires that we determine whether the defendant could rationally consult with her attorney and assist in her defense. [Note 28]

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In this case, the defendant's claim rests on the "now-unremarkable proposition that battered woman[] syndrome can . . . render a criminal defendant incompetent." Pike v. Guarino, 492 F.3d at 77. [Note 29] More specifically, the defendant argues that she was unable to consult with her attorney or assist in her defense. See Commonwealth v. Conaghan, 433 Mass. 105 , 109 (2000) ("Evidence of battered woman syndrome is 'material to the issue whether [the defendant] could assist her counsel in preparing a defense that served her best interests.' McMaugh v. State, 612 A.2d 725, 732 [R.I. 1992]").

The proper inquiry is whether, after a review of the relevant information and evidence available to the judge or to counsel both before and during the trial, there exists a "substantial question of possible doubt" as to whether the defendant was competent to stand trial. Commonwealth v. Robbins, 431 Mass. 442 , 447 (2000). "The inquiry 'is not why counsel failed to request a competency hearing or why the court failed to hold one on its own initiative, but whether, no less on hindsight than by foresight, there were elements of such indication in the situation as, if proper notice had been taken of them, could present a substantial question of possible doubt as to [the defendant's] competency to stand trial.' " Commonwealth v. Companonio, 445 Mass. 39 , 48 (2005), quoting from Commonwealth v. Hill, 375 Mass. at 54. See Commonwealth v. A.B., 72 Mass. App. Ct. at 14-16.

Substantial evidence was adduced in this case that the defendant was incapable of rationally assisting in her defense because of a focused and continuing pattern of abuse against her and domination over her by her husband and codefendant. The motion judge recognized what was obvious and undisputed in the record, that the defendant experienced severe physical and emotional abuse from Corby throughout their lives together. The judge also accepted, at least implicitly, that there was

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evidence the defendant suffered from battered woman syndrome. [Note 30] Each of the three experts described the defendant as a victim of battered woman syndrome, and each agreed that Corby exercised a tremendous degree of control over her. The opinions of the experts were corroborated by the defendant's son and by both of the defendant's attorneys, as well as the defendant's own testimony.

In addition, truly startling evidence was presented at the hearing, and apparently credited by the judge, revealing the remarkable amount of control that Corby exercised over the defendant throughout the proceedings. Bielitz, in particular, testified about this in chilling detail. [Note 31] Once Corby isolated the defendant from her attorney, or at least from the opportunity to consult with him privately, he then insisted that the two proceed with a "unified defense" and prohibited any suggestion of a plea or separate trials. This "unified defense," along with regular direct and indirect contact with the defendant, permitted Corby to maintain tight control over the defendant even though they were held in separate facilities. [Note 32] Contrast Pike v. Guarino, 492 F.3d at 76 (holding, inter alia, that, because the defendant and her boyfriend, the codefendant, had been held for more than a year on separate floors of the facility, their lack of physical proximity had caused his control over her to diminish).

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In rejecting the testimony of the experts and the defendant's argument, the judge's reasoning was, essentially, circular: the defendant was able to make a decision because she made a decision. [Note 33] Although he concluded by saying that there was no credible or reliable evidence that the defendant lacked competency, the judge did not point to a single piece of evidence, apart from Dr. Joss's expertise, that he disbelieved. [Note 34] This case is thus very different from the situation presented by Commonwealth v. Pike, 431 Mass. 212 , 224-225 (2000), where the motion judge explicitly disbelieved the defendant's testimony about her alleged abuse. Here, it appears that the judge credited all of the testimony regarding the history of violent abuse and regarding Corby Adkinson's successful efforts to control the defendant's defense. In the judge's view, however, that evidence did not raise a doubt about the defendant's competency, in part, perhaps, because his definition of competency was too narrow. In any event, we disagree with his conclusion.

We have considered and rejected another aspect of the motion judge's decision. He placed, as does the Commonwealth, significant emphasis on the suggestion that the defendant's goal of reunification with her children was the basis for her pursuit of the ill-advised unified defense, because a finding of not guilty was the only way she would ever regain custody of her children. In so doing the judge observed, accurately, that a defendant has a right to reject a defense suggested by her attorney and that a foolish or unsuccessful choice does not render her incompetent.

We note at the outset that the record support is thin for the

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finding that reunification with the children was the driving force supporting the defendant's acquiescence in a unified defense; that finding is based almost exclusively on the fact that the defendant retracted her statement, made when she was in Solomon for a psychiatric evaluation, that Corby was abusive, after his lawyer told her on Christmas Day, 1995, that she had better stop telling the staff what was going on at home or she would never get her children back. The defendant also acknowledged on cross-examination at the hearing that she knew she would not get her children back if she was convicted. However, the record also shows that, when Bielitz testified at the motion hearing that it was "foolhardy" to go to trial, the prosecutor unsuccessfully pressed him to concede that the defendant chose trial because a not guilty verdict was the only way she could be reunited with her children and that was her paramount goal. Bielitz responded that he did not know if the defendant understood that strategy and that it was not the viewpoint he had adopted. In addition, the defendant testified at the motion hearing that she had wanted her children to be safe and "if that meant that they were in DSS custody, then that was safe to me."

Even assuming, however, that reunification with her children was an important goal underlying the defendant's decisions, our inquiry remains whether the evidence raises a substantial doubt as to the defendant's ability to consult rationally with her attorney and assist her defense in achieving whatever goal she chose. The issue in a competency inquiry is not whether a defendant has made poor trial choices. See Commonwealth v. Robidoux, 450 Mass. 144 , 156 (2007), quoting from Commonwealth v. Martin, 425 Mass. 718 , 721 (1997) (defendant has a constitutional right to make decisions relating to his defense because "respect for individual autonomy requires that he be allowed to go to jail under his own banner if he so desires and he makes the choice 'with eyes open' "). Rather, the question is whether the defendant, in making those choices, has the ability to consult rationally with counsel and assist in that defense.

We also note that, while a defendant is clearly entitled to pursue an ill-advised defense, the choice of a unified defense in this case does provide at least some additional evidence of the defendant's incompetency. No one associated with this case

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believed that the defense was sound. Her own attorney called it "foolhardy," and the motion judge apparently agreed. [Note 35] The defendant's only viable defense at trial was one based on battered woman syndrome, presented in a separate trial. Yet she was prevented from choosing it by her fear of her husband and his ongoing control of her as shown by the evidence. Compare Commonwealth v. Roberio, 428 Mass. 278 , 279-281 (1998), S.C., 440 Mass. 245 (2003) (failure to investigate an insanity defense constitutes ineffective assistance of counsel); Commonwealth v. A.B., 72 Mass. App. Ct. at 14 n.6 (defense based on criminal responsibility was the only viable option for an acquittal and the failure to raise it presented troubling concerns about counsel's performance). [Note 36]

On the facts of this case, where evidence of serious, violent, long-term physical and emotional abuse is undisputed; evidence that the defendant suffered from battered woman syndrome is substantial; and evidence of the abuser's ongoing control, to the defendant's detriment, is compelling, there is a substantial question regarding the competency of this defendant to consult rationally with her lawyer in order to assist in her defense, and therefore her competency to stand trial. Central to our analysis is the overwhelming evidence of Corby's ongoing control throughout the proceedings, including in particular the fact that he was able to forestall the defendant's private consultation with her attorney. See McMaugh v. State, 612 A.2d at 733 (defendant, a severely battered woman, found incompetent to stand trial where her husband and codefendant compelled her to accept his version of events, was present during every meeting with attorneys, and demanded that they be tried together, and defendant passively agreed), cited with approval in Commonwealth v. Conaghan, 433 Mass. at 111. It makes no difference whether trial counsel should have presented evidence of

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incompetency to the trial judge or whether the trial judge should have recognized that the unusual posture in which the case was presented raised concerns about the defendant's competency; the motion for a new trial should have been allowed. Compare id. at 110-111. The motion judge's ruling to the contrary was error.

The judgments are vacated, the findings are set aside, and the order denying the motion for a new trial is reversed.

So ordered.